Law and Ethics

Curtis Publishing Co. v. Butts

(1967) - Saturday evening post reporters failed to check charge that Georgia football coach Wally Butts fixed football game with AL coach Bear Bryant found guilty of libel and put out of business after fines

SCOTUS first overturned a punitive award as "grossly excessive" in

1996 - 5-4 decision in deceptive practice case of AL doctor - wanted 2 million from BMW because they didn't tell him they repainted his car before he purchased it

Understand product disparagement (trade libel)

A business' products can be libeled too. Product disparagement (or trade libel) defames the quality or usefulness of a product rather than the company that produced it. Compensation: loss of sales. Must show common-law malice : intent to do harm - or actual malice : knowledge of falsity or reckless disregard of the truth. T exas beef Group v. Oprah Winfrey (1998)

Is using a person's name required to libel him or her?

Does not require actual use of a person's name - 12 year old boy killed 11 year old playmate - defamed because it was said that what happened was savage but really just one blow to the head

Who is liable for damages as a libelous statement is repeated?

Everyone who repeats the libel is potentially liable, except for common carriers (such as telephone companies) which exercise no control over information they transmit. Are Internet service providers generally are not liable, even if they're warned and do not remove it, because of high value of content

Qualified Privileges

Fair Report Privilege - journalists who report defamatory comments made in official proceedings are protected as long as the stories are fair and accurate

standard of negligence

Gertz v. Welch (1974) - defined public figures and eliminated strict liability in libel law for private persons most states now use standard of negligence: requires private citizens to prove that defamation was published with a lack of due care Negligence measured either by average person standard (what would a reasonably prudent person do?) or professional standard (what would an ordinarily prudent person in the same occupation do?).

Statutes of Limitations

How long in Virginia? 1 year Easy way to win - requirement that prosecutors and plaintiffs file suit within a specified period - usually one to two years from date of publication in libel action. How long in Virginia? 1 year

Libel per se vs. libel per quod

Libel per se - saying someone has committed or is accused of committing a crime is defamatory on its face Libel per quod - the matter itself may not appear defamatory, but additional information would damage plaintiff's reputation

Actual malice standard defined in NY Times v. Sullivan (1964) and what is the burden of proof for a public figure or official?

New York Times v. Sullivan (1964) - SCOTUS landmark case- declared common law of strict liability unconstitutional when media defames a public official if it is a public figure, it must be actual malice actual malice: knowingly false or reckless disregard of the truth

What did libel plaintiffs have to prove before 1964?

Prior to 1964, plaintiffs won as long as they proved they were defamed, even if journalist could not prove the truth or thought it was accurate

Do private citizens not involved in a matter of public concern need to prove an alleged libel was false?

Private persons not involved in matters of public concern still must prove negligence but not necessarily falsity (may be impossible to prove)

What does it mean for the media to have an "absolute privilege", when do they have it in libel cases and are there limitations?

Speech is completely protected by law even if false and defamatory. Privilege for Government Officials Only when acting in their official capacity Includes comments made during judicial proceedings. Does NOT extend to statements outside legislative process. In Hutchinson v. Proxmire, Wisconsin Sen. William Proxmire's criticism of a doctor's research on monkeys was privileged on Senate floor but not outside the Senate. States - may have similar privilege for state officials or qualified privilege for lower level officials protecting speech only under certain conditions Consent Plaintiffs cannot compensation for harm by activities they agreed to. Vanderbilt campus humor magazine said a local minister's wife was sexually promiscuous and his one-year-old daughter wanted to be. Minister talked about libel case to student newspaper Hustler and then sued when they reprinted the page that triggered the suit. Tennessee Supreme Court said : NP had a privilege to do so because minister consented to presentation Privilege for Broadcasts by Political Candidates stations are not hoe dliable for whatever the candidates say during that period of time Equal Time provisions of Communications Act of 1934 requires stations to provide time to political candidates and prohibits them from censoring remarks. SCOTUS in 1959 case said Fargo TV station was not liable when it provided time to candidate who accused a state farmers union of being controlled by Communists. - Also not be allowed to bleep it out

Understand true (or "pure") opinion versus purported opinion.

True opinion cannot be proved false. Purported opinion - "In my opinion, John Jones is a child molester" not a protected opinion since it implies that the speaker knows unstated facts

What do private citizens need to prove for libel after Sullivan?

While private citizens must only prove that publisher acted negligently or carelessly, public officials and public figures have to prove actual malice (the publisher knew the publication was false or published it with reckless disregard for the truth). Must be proven with "clear and convincing evidence." actual malice: knowingly false or reckless disregard of the truth New York Times v. Sullivan (1964) - SCOTUS landmark case- declared common law of strict liability unconstitutional when media defames a public official

What happens if a libel plaintiff dies before the suit is settled?

a dead person cannot be defamed, however- a relative may continue a libel suit filed by an individual who dies before suit is concluded

Truth as an absolute defense to libel.

absolute defense- but may be difficult or impossible to ascertain

When is group libel allowed?

allowed when the plaintiff is a part of a group of over 100 members if it is not over 100, it cannot be group libel the smaller the group, the more likely that certain individuals in a group can sue, even members of small groups generally cannot sue if the whole group was not slurred On the other hand, statements encompassing most of a small group could be seen as a blanket slur, defaming everyone - Neiman-Marcus case - all 25 menswear salesmen can sue when a book said that most of the staff were 'fairies'

What are compensatory damages?

compensates for the harm libel causes to reputation Degree of fault is an issue- judge considers how many people saw/heard, seriousness, degree of injury suffered character and reputation of plaintiff and defendant

What is a summary judgment, who issues it and when?

issued by judge (usually but not always a trial) because plaintiff case is too weak to prevail and no genuine dispute over a material fact important to media because this avoids trial expenses

What are punitive damages?

large money awards levied to punish a publication for defamation rather than compensate plaintiff for injury to reputation

Distinction between libel and slander

libel is generally written, and slander is spoken. written slander is believed to cause more damage to a person's reputation

Substantial truth rule

minor error/discrepancies does not necessarily make a statement false- as long as it is substantially true Private persons not involved in matters of public concern still must prove negligence but not necessarily falsity (may be impossible to prove).

Is most libel litigation civil or criminal?

most are civil rather than criminal

Can one sue for libel on behalf of another?

reputation is personal, so no one can sure for damage done to the reputation of another, not even close relatives or business associates

Innocent construction rule.

says language should be considered non defamatory if it can be read that way Ads, cartoons, photographs, innuendo can all be libelous but have to be considered in context.

What is a "libel-proof" defendant?

some pain tiff's are "libel-proof" because their reputations are already so bad that no words can hurt them

presumed damages

the loss of reputation that defamation is presumed to cause