Quiz No. 5

Kato Kaelin case

"Kato Kaelin. . . . Cops Think He Did It." The story said the police were trying to prove that when Kaelin testified at Simpson's trial, he lied under oath, that he committed perjury. Kaelin argued that the headlines for the story suggested he was a suspect in the murders by using "it" Examiner argued the word "it" meant perjury. Judges on the 9th U.S. Circuit Court of Appeals ruled that under California law the meaning of the publication must be measured by the effect it would have on the mind of the average reader, and in this case it was highly likely that an average, reasonable reader might conclude that the word "it" referred to murder. Kaelin and the Examiner settled this suit in October 1999.

Terms in Section 230

"an interactive computer service" as an "information service, system, or access software provider" that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

The criteria for application of qualified privilege:

1) report of a privileged proceeding or document 2) a fair and accurate summary published or broadcast as a report

Reckless disregard definitions

1. A high degree of awareness of the probable falsity of the defamatory material when it was published 2. Sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication 3. Evidence the defendant purposefully avoided the truth

3 factors for determining who is a limited-purpose public figure:

1. Public controversy must exist before publication and the outcome must have an substantial impact on general public 2. Plaintiff must have voluntarily participated in this controversy 3. Plaintiff must take role in trying to influence public opinion regarding controversy

What are each of the 5 elements that a plaintiff must prove to win a defamation/libel suit?

1. Publication 2. Identification 3. Defamation 4. Falsity 5. Fault

3 factors courts use to determine reckless disregard

1. Story Timeliness: Was the news breaking? Was it "hot" news? Was the publication of the story urgent? Or was there sufficient time or reasons to more fully check the facts in the story? 2. Source Credibility: How credible or reliable were the sources used? How reliable was the source of the story? Should the reporter have trusted the news source? Should the editor have trusted the reporter? 3. Story Probability: Was the story inherently believable or probable? Or was the story so unlikely that it cried out for further examination?

TO WIN A LIBEL SUIT A PLAINTIFF MUST PROVE:

1. The libel was published. 2. Words were of and concerning the plaintiff. 3. Material is defamatory. 4. Material is false. 5. Defendant was at fault.

What is the "bottom-line" today regarding online anonymity?

1. The right to online anonymity is not absolute. Courts do have the power to force Web site operators and interactive computer services to reveal the IP and e-mail addresses of otherwise anonymous posters. 2. Most courts apply some version or variation of either the Dendrite or Cahill (Doe v Cahill) test to determine if such "unmasking" of anonymous posters is justified in a given case.

Libel statute of limitations in Florida

2 years

Stacey Stanton case

A 2003 issue of Boston Magazine carried a story titled "The Mating Habits of the Suburban High School Teenager." The thrust of the article was that teenagers in the Boston area have become more sexually promiscuous in the last decade. The article was illustrated with a photograph of Stacey Stanton and four other teenagers with a small disclaimer Stanton sued for libel, alleging that by juxtaposing her photo and the text in the article insinuated that she was engaged in the promiscuous behavior described. 1st U.S. Court of Appeals reversed this ruling, saying that the type in the disclaimer was so small that it might be overlooked by readers, or a reader might just look at the first sentence, describing where the photos came from, and ignore the second and third sentences. Small disclaimer was not enough to shield Boston Magazine.

Dendrite Test

A New Jersey appellate court ruled that a subpoena to ascertain the identity of anonymous Internet posters in a libel case should not be issued unless the plaintiff could first make a case for libel. So, the court outlined a four-part test known as the Dendrite test: 1. The plaintiff must first make an effort to notify the anonymous poster that he or she is the subject of an application for disclosure. 2. The plaintiff must identify and set forth the allegedly defamatory statements. 3. The plaintiff must provide sufficient evidence to support each element of the cause of action, including the harm that has allegedly been incurred. 4. The court must then balance the defendant's right to anonymous speech under the First Amendment against the strength of the plaintiff's case and the necessity of disclosure to allow the plaintiff to proceed properly

What is a SLAPP suit?

A SLAPP suit is a lawsuit intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. In cases where the plaintiff is far more interested in blocking the defendant from publishing further harmful comments rather than winning damages, legal authorities call these kinds of libel suits Strategic Lawsuits Against Public Participation, or SLAPP suits. (Forcing libel lawsuit)

Rhetorical Hyperbole

A clear exaggeration or falsehood that is not intended to be taken seriously by the audience. Sometimes used as a defense in libel cases, but it is not recognized by all courts. Two cases: Lewandoswki & Stormi Daniels

Material change rule

A deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity unless the alteration results in a material change in the meaning conveyed by the statement

The basic definition of defamation :

A false, unprivileged, statement of fact about the plaintiff communication by the defendant to a third party with a degree of fault that causes the plaintiff reputation injury.

Libel-proof plaintiff

A plaintiff whose reputation is deemed to be so damaged already that additional false statements of and concerning him or her cannot cause further harm.

Milkovich standard

A statement of pure opinion on a matter of public concern is protected by the First Amendment

Absolute privilege vs Qualified privilege

Absolute: Anyone speaking in a legislative or judicial forum is immune from libel action. Also, any publication that is in line with a government official's discharge of official duties Qualified: The freedom of the press to report what is discussed during legislative and court proceedings. Qualified privilege is also called "privilege of the reporter" and says that you cant be sued for libel if you are simply trying to report what was said in a government forum, as long as you attribute the source correctly and provide a fair and accurate summary.

The Leah Manzari (Danni Ashe) case

Aka - the most downloaded woman on the Internet, Danni Ashe, sued Associated Newspapers over an article that appeared in the Daily Mail. In 2013, the Daily Mail published an article headlined, "Porn industry shuts down with immediate effect after 'female performer' tests positive for HIV." The publication used a picture of Manzari despite the fact she wasn't the 'female performer' referenced in the article. These cases stand as examples of why individuals working in the media must be careful when they use images unrelated to the stories they write.

Other definitions of defamation:

Any communication that holds a person up to contempt, hatred, ridicule or scorn and lowers the reputation of the individual defamed. The general rule in the United States is that a statement conveys a defamatory meaning if it would harm a person's reputation in the eyes of "a substantial and respectable minority" of the community.

Law of Defamation

Concerns false statements that harm someone's reputation The law of defamation includes both libel (written defamation) and slander (oral defamation).

Most common categories of problem words

Crime Sexual References Personal Habits Ridicule Business Reputation Criticism of a Product

Section 230 of the Communications Decency Act:

Enacted in 1996 to encourage "interactive computer services" to restrict the flow of objectionable content. It provides a "safe harbor" for OSPs from liability for material posted by third parties. Section 230 states, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The law was passed to ensure that by editing material on the Internet, an OSP could not be held liable under the republication rule.

Negligence

Failure to exercise ordinary or reasonable care.

What are Survival Statutes?

If a living person is defamed and brings forth a suit (ex. libel suit) and then dies before the matter is settled by the court, it is then possible, in some states, that have what is called survival statutes, for relatives to continue to pursue the lawsuit. Basically, it gives rights to relatives to pursue a defamation lawsuit if the plaintiff dies.

The Ollman Test

In 1984 the U.S. Court of Appeals for the District of Columbia Circuit outlined a four-part test to determine whether a statement should be regarded as the assertion of a fact or as simply the speaker's or writer's opinion. The test, which emerged from the case of Ollman v. Evans: 1. Can the statement be proved true or false? (This is the basis of Milkovich.) 2. What is the common or ordinary meaning of the words? 3. What is the journalistic context of the remark? 4. What is the social context of the remark?

Nicole Eramo Rolling Stones case

In 2015, a dean of students at the University of Virginia named Nicole Eramo sued Rolling Stone magazine for $7.5 million in compensatory damages over a now debunked 2014 story called "A Rape on Campus." Eramo contended the article portrayed her as the "chief villain" in not supporting or helping a woman named "Jackie," who claimed she was gang raped at a University of Virginia fraternity. A jury eventually awarded Eramo $3 million after a two-week trial, and Rolling Stone later retracted the comments about Eramo.

Voluntary limited purpose public figure

Individuals who voluntarily inject themselves into an important public controversy in order to influence public opinion regarding the resolution of that controversy. The key elements are these: a. Public controversy, the resolution of which must affect more people than simply the participants. The outcome must have an impact on people in a community. b. Plaintiffs who voluntarily thrust themselves into this controversy. An individual who has been drawn involuntarily into a controversy created by someone else (such as the press) will not usually be considered a limited-purpose public figure. c. Plaintiffs who attempt to influence the outcome of the controversy, to shape public opinion on the subject. This implies that a plaintiff has some access to the mass media to participate in the public discussion surrounding the controversy.

One of the great myths of American Journalism

It is a myth that attributing libel to a third-party source will shield you from a lawsuit. It is not true. Just because you did not directly libel, does not mean that you did not aid in spreading the libel. Just because you say "She/he said it, not me," cannot save you from a libel suit.

Actual malice

Knowledge of falsity or reckless disregard for the truth

Libel vs. Slander

Libel is written and slander is spoken. Libel is a written (permanent record) and slander is spoken (fleeting)

Libel Tourism Bill (Free Speech Protection Act, 2010)

Libel tourism is traveling to a foreign venue to file a defamation action that would not succeed in this country. U.S. governments have attacked the problem. At least two states, New York and Illinois, have enacted legislation that prohibits courts in those jurisdictions from enforcing overseas judgments.

Slander

Making a false spoken statement damaging to a person's reputation.

New York Post "Bag Men" case

NY Post's use of the phrase 'Bag Men' and subsequent subhead implied the men photographed were suspects when they were not

Liability for Online Service Providers

OSPs are immune from libel suits unless they author or encourage the posting of illegal content. Why? The OSP merely transmits what another party has posted on the system. In this case, the system operator will be regarded as a vendor or distributor rather than a publisher.

Winning a suit: 2. Identification

Of and concerning the plaintiff Group identification: Can someone be identified personally as being part of this group

Winning a suit: 1. Publication

One person, in addition to the source of the libel and the person being defamed, had to see or hear the defamatory material.

All-purpose public figure

People who occupy positions of persuasive power and influence in the nation or in a community, who are usually exposed to constant media attention.

Jeffery Masson case

Psychoanalyst named Jeffrey Masson sued New Yorker magazine and writer Janet Malcolm. Malcolm wrote a long article about him, an article that was later republished as a book. Masson objected to many of the comments attributed to him as direct quotes, claiming that Malcolm had changed his words, that she had fabricated the statements. Masson stipulated that he was a public figure, so he had to prove actual malice. He argued that changing his words in the direct quotes was evidence of knowledge of falsity. Supreme court decision: "We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity . . . unless the alteration results in a material change [emphasis added] in the meaning conveyed by the statement."

NYT v. Sullivan

Public officials and figures -- Libel and slander are not protected, and you need to prove malicious intent. Time of the deep south. On March 29, 1960, the Times carried a full-page editorial-advertisement titled "Heed Their Rising Voices." The ad was placed by an ad hoc coalition of civil rights leaders called the "Committee to Defend Martin Luther King and the Struggle for Freedom in the South." The ad leveled charges against public officials in the South who, the committee contended, had used violence and illegal tactics. The charges contained in the advertisement were true; but the ad was filled with small, factual errors. Several public officials in Alabama sued the newspaper. The first case to go to trial was brought by Montgomery, Ala., police commissioner L.B. Sullivan, who sought $500,000 in damages for false and defamatory statements about the conduct of the Montgomery police department. Sullivan was never named in the ad, but contended that comments about the behavior of the Montgomery police reflected on him. A trial court ruled on behalf of Sullivan, and his $500,000 damage award was upheld by the Alabama Supreme Court. The U.S. Supreme Court reversed the decision, ruling that Sullivan could not recover damages in this case unless he proved that Times published the false and defamatory advertisement either knowing it was false or that the paper exhibited reckless disregard for the truth when it printed the material

4 "more common reasons" for finding negligence

Reliance on an untrustworthy source. Not reading or misreading pertinent documents. Failure to check with an obvious source, perhaps the subject of the story. Carelessness in editing and news handling.

Key Injury involving defamation

Reputational harm to the plaintiff is the key injury with which defamation law is concerned. A reputation is reflected in how others treat or act toward a person or a business. Reputational harm therefore is different from the internal emotional distress a person might feel after reading something false and negative about himself, although many states today allow for recovery of both reputational harm and emotional distress in defamation cases.

Elias v Rolling Stone 2014

Rolling Stone published an article that defamed members of Phi Kappa Psi by implying they all were complicit in the rape that occurred at Uni. of Virginia.

SPEECH Act of 2010

Securing the Protection of Our Enduring and Established Constitutional Heritage Act. It was signed by President Barack Obama in 2010. In brief, plaintiffs may win large verdicts in libel cases overseas, but the SPEECH Act makes it impossible to recover or collect the money in the United States if the laws of the other country are not as protective of speech as they are in the United States.

Who is a private person?

Someone who does not meet the criteria of a public person.

Retraction statutes

State Laws that limit the (punitive) damages a plaintiff may receive if the defendant had issued a retraction of the material at issue.

What is Anti-SLAPP statutes?

State laws that provide a streamlined method for dismissing libel lawsuits that are filed in an attempt to subdue legitimate comment on public issues Rather than sending the dispute to trial, anti-SLAPP statutes, or what are sometimes called Citizen Participation Acts, permit the defendant to ask a judge to dismiss the complaint immediately. About 30 states now have anti-SLAPP statutes. (Dismissing libel lawsuit)

Winning a suit: 3. Defamation

Statements that would expose a person to hatred, ridicule, or contempt

What does the acronym SLAPP stand for?

Strategic lawsuits against public participation

Richard Simmons lawsuit against the National Inquirer

Sued the National Inquirer for claiming that he underwent sex reassignment surgery. Suit was unsuccessful.

Truth as a defense

The defendant is required to prove the truth of the libelous allegations.

The rules and criteria for deciding who is a public figure

The designation for a plaintiff in a libel suit who has voluntarily entered a public controversy in an effort to influence public opinion in order to generate a resolution of the issue.

The rules and criteria for deciding who is a public official

The designation of a plaintiff in a libel suit who is an elected public officer or is an appointed public officer who has or appears to have considerable responsibility for or control over the conduct of governmental affairs. Two questions must be asked to determine whether a libel plaintiff should be considered a public official: 1. Who is this plaintiff—what kind of government job does he or she have? What is the job description? 2. What was the allegedly libelous story about? What is the nature of the story? 1. Any person who is elected to public office, to even the lowliest public office, qualifies as a public official. 2. Individuals who are appointed to or hired for government jobs may qualify as public persons in a libel action. It depends on the nature of the job. 3. But not everyone who works for the government will be regarded as a public official.

Protection of opinion (Milkovich test v. Ollman Test)

The law has traditionally shielded statements of opinion from suits for defamation

Statutes of limitation

The law that sets the length of time from when something happens to when a lawsuit must be filed before the right to bring it is lost. (The time within which a case must be commenced)

Winning a suit: 4. Falsity

The statement must be a false factual assertion.

"Clear and convincing" evidence standard and how it applies to proving actual malice:

There must be a standard of proof in determining actual malice. There can be little to no dispute about the evidence

Involuntary limited-purpose public figures:

Those rare individuals who have involuntarily entered into public controversy.

Stormy Daniels hyperbole case

Trump's use of "A total con job" was defined as extravagant exaggeration employed for rhetorical effect

Corey Lewandowski hyperbole case

Trump's use of "major loser" and "zero credibility" were ruled loose, figurative, and hyperbolic

Libel

Written defamation of a person's character, reputation, business, or property rights. Libel law is essentially state law. All published communication on the internet is considered libel.