Defamation

Example of a PRIVATE citizen

"this person has never been mentioned in the newspaper"

Example of a FAMOUS citizen

"this person is Oscar-winning actor"

Two examples of Indirectly identifying

1. "the actor and bodybuilder who used to be governor of California cheated on his wife" = Arnold Schwerineger 2. "Cowboys' star running back punched his girlfriend" = E Elliot

3 Examples of Libel per se

1. Accusing someone of a crime --EX: Calling them a bank robber, murder, thief, criminal 2. Saying someone incompetent at their job 3. Saying someone has a loathsome disease

What 7 things MUST you prove for defamation

1. Defamation 2. Falsity 3. Publication 4. Identification 5. Causation 6. Damage 7. Defendant fault

EX Test Question: TCU 360 reports Boschini has been kidnapping puppies for fur coats and keeping them in his basement. This is a lie, so Boschini sues for libel. Can he win? What would he have to prove?

1. Defamation: per se because kidnapping puppies is accusing him of a crime (theft) 2. Falsity: It is factually false, not an opinion 3. Publication: published to TCU 360 and received by audience (counts as the third-party) 4. Identification: specifically identifies Boschini DIRECTLY with name 5. Causation: Must prove bad things someone said about him CAUSED harm 6. Damage: probably would be nominal because doesn't need money, but just wants to show everyone this is not okay --Punitive possibly if posted with actual malice 7. Defendant fault: Boschini is a PRIVATE figure, so just need to prove negligence --can do this because TCU 360 failed to contact to verify information

Explain the 7 elements of libel in context with the Gordon & Holmes v. Courtney Love case

1. Defamatory = Yes 2. Falsity = Yes, it was a miscommunication - Holmes did not take a bribe 3. Publication = Yes, Published on Twitter 4. Identification = Yes, Specifically cited Holmes 5. Causation = Yes, Tweet caused harm to Holmes' reputation 6. Damages = Yes, presumed for business loss 7. Defendant Fault = NO because Holmes (plaintiff) is considered a public figure, so actual malice needed to be proved --Have to prove Love knew the statement was false or recklessly disregarded the truth --If it were negligent (for private figure), Holmes could've won

What are the 4 ways of identifying an individual or corporation

1. Directly 2. Indirectly 3. In fiction 4. By error

What are 6 examples of statements that are NOT factual assertions and thus NOT grounds for a libel claim

1. Jokes 2. Rhetoric/hyperbole 3. Vague insults (Ex: slut_ --This is vague because no solid definition for everyone like the word "murderer" 4. Reviews 5. Speculation 6. Conclusions

What are the 2 types of defamatory statements

1. Libel per se 2. Libel per quod These are the main categories when deciding this does damage someone's reputation

What is the middle ground between private and public figures

1. Limited-purpose public figure 2. Involuntary public figure

What are the 4 types of damages

1. Nominal 2. Actual 3. Assumed 4. Punitive

What are the 3 implications on PR pros that came from the decisions in Seaton v. TripAdvisor LLC

1. PR pros make these lists --Provides protection for them to do their job 2. Requires PR pros to make the list subjective 3. Provides protections for user-generated content providers

Who were the two parties in Seaton v. TripAdvisor LLC

1. Plaintiff: Kennith Seaton - Hotel owner 2. Defendant: TripAdvisor

3 categories of defamation publishers

1. Primary publishers 2. Republishers 3. Secondary publishers

What are the 3 levels of libel plaintiffs

1. Private persons --- Negligence 2. Limited-purpose public figure or involuntary public figure --- Depends on the topic 3. Public persons --- Actual Malice

While these are NOT legal defenses, what are the 2 Affirmative defenses that can be used by the defendant

1. Retraction 2. Right to reply These are the 2 PR strategies that can be used when being sued for defamation

What are the 2 forms of defamation --Both are what matters?

1. Slander 2. Libel Both are civil matters = torts --civil wrongdoing that harm to a person or personal property, not crimes --Only way to get justice is to SUE, can't call the police on someone Criminal libel is rare... Usually handled as civil wrongs to be litigated between individuals

What are the 8 things the DEFENDANT can argue in a Defamation case?

1. truth 2. statute of limitation 3. consent 4. absolute privilege 5. conditional privilege 6. interest privilege 7. wire service defense 8. Anti-SLAPP laws

What was the background for the case of New York Times v. Sullivan

1950s-1960s: Martin Luther King Jr. was leading desegregation efforts in the South

What happened in the case of New York Times v. Sullivan

1960: NY Times published full-page ad supported Civil Rights Movement and MLK Jr. AND sought donations --copy that said Dr. King and his followers had been arrested on trumped-up charges (false claims) Plaintiff: L.B. Sullivan (Montgomery Public Safety city commissioner who supervised the police department) sued for LIBEL claiming statements in ad about police misconduct LIBELED him Alabama jury sided with Sullivan, but appealed to SCOTUS

What happened in the case of Hustler v. Farewell

1988: Hustler ran a series of ads that were spoofs of Campari ads. --Campari ad campaign was going on where they would interview celebs asking them about the first time they tried Campari Reverend Jerry Farewell supposedly discussed sex with his mother in an outhouse --Farewell sued for libel

What is the Streisand Effect

2 researchers were doing a project on soil erosion flying over the coast of CA and taking pictures --This was a privacy case: Streisand sued guys for taking pictures of her house Pictures were uploaded with eneric name lie IMG_045, not Streisand house --Lawyers said this picture was accessed 6 times (4 times were by her lawyers) --Once hit the news, thousands of people downloaded Outcome: she LOST bc can't base case on stuff that happens after you filed the lawsuit --Airplanes fly into LAX all the time, so she didn't have a reasonable expectation of privacy that people couldn't look at your house

What is the background to the case of Gordon & Holmes v. Courtney Love

2016: Love married Kurt Cobain, who had well documented drug problems & history of substance abuse --When Cobain died, she was afraid people who worked for her or her husband that someone was stealing money from his estate after he died Hired Holmes to investigate the theft --Holmes issued a news release that they would be filing civil lawsuits in NY papers Homes told Love she believed there was a conspiracy to commit fraud --Holmes began getting targeted and said her computer had been hacked, things were getting stolen from her too and was threatened --Love thought Holmes was getting cold feet Love missed a meeting with Holmes --Holmes couldn't get a hold of Love and thought she was fired --Love thought she quit No lawsuit was filed

What is Absolute privilege

A member of Congress or city official in a public debate or meeting performing your duties... what you say here can not be a suit for libel --What you say in debates doesn't have to be always accurate because it is a debate They are EXEMPT from liability

What are actual damages

AKA compensatory / special If you can show how much money you lost, you can get it back EX: Shawn Pen sued Lee Daniels (Empire person saying Pen domestic violence) for $10 million after firing him because of old tweets --compensatory damages = compensating him for what he lost --Would have to show those statements caused his firing... but this would most likely end with presumed damages showing the bad thing said makes me lose future jobs Legal fees goes ON TOP of damages

Libel per se

All you have to see is what the SAID (Don't need the context) --Jury knows the statement is bad and damaging

Who can sue for defamation

Any person or entity can sue for defamation --The dead and government units can NOT sue However, individual government office holders CAN sue

What are Republishers

Anyone who repeats or passes along a defamatory statement --Held accountable in the same way as a primary... still true even if the republishers says content isn't true

How can a defendant use the wire service defense

Associated Press has reporters who write stories --Other newspapers have subscriptions to their stories to use them in their casting --Called wire series bc used to transmit stories over TV wire If that story contains libel and you repost it, in some states you would be protected --Because you weren't neglectful, didn't have your reporter there, just are reposting etc. ----Some states might label you a republisher though

How can a defendant use the statute of limitations

Because plaintiff only has a certain window of time that you can file your lawsuit --case can be thrown out if outside of the time EX: Rape and torts do (between 1-3 years) --No statute of limitation for murder

Provide an example for when are business treated as PRIVATE for the purposes of libel law

Bob's local plumbing services --Even if he has a van, he is still private --Not a lot of advertising If have to look at the Yellow Pages - probably private

What is a limited-purpose public figure

Celebrity is known for this topic, but rest of the life is not famous EX: Greta Thurburg is a climate change activist --Is a PUBLIC figure in lawsuit that discusses climate change... have to prove actual malice --If talking about PRIVATE life, she'd be considered private... only prove negligence

What do you show when for you must prove: Damages

Damages means money Show how much money you should get

What is the Strict liability test

Didn't have to show anyone did anything wrong - just show something went wrong EX: product safety - Defective car seat --Doesn't have to show the company did something bad... just show car seat didn't do what it was supposed to do

What question in Seaton v. TripAdvisor LLC

Does this qualify under the present or just a hyperbole, opinion or rhetorical exaggeration?

Explain identifying By Error through an example

EX: posting story on web about someone and you go to put a picture - get the wrong person's picture --You have by error identified the wrong person through the wrong picture

What is an Involuntary public figure

Ex: saving Taylor Swift's life from muggers --Now a public figure - however, you can be considered private because you didn't choose to be famous just did a good deed

What are punitive damages

Extra money that punishes the defendant --If you show actual malice, then you can probably get punitive damages In addition to actual and presumed damages

What happened in the District court during Seaton v. TripAdvisor LLC

False-light privacy was dismissed because Seaton wasn't identified specifically just his business (can't sue for business) AND Seaton based his amended claims on the grounds like there was defamation in the case --Judge defined no defamation in the case, so lost the case Seaton appealed to the 6th Circuit Court

What was the major focus of the case of Seaton v. TripAdvisor LLC

Focused on libel because post was published online

What is Indirectly identifying

Gave enough info that everyone would know who they were talking about

What is a Right to Reply

Gives person who was libeled a space to talk to their audience --YOU aren't retracting what you start Courts can't force media outlets to provide equal time or to issue retractions --That would be compelled speech and violates the First Amendment

What was the 1st manage cases involving the allegation of libel on Twitter

Gordon & Holmes v. Courtney Love

Outcome of Hustler v. Farewell

He LOST bc the jury decided no one would reasonably consider that a statement of fact --Just poking fun at him

What is Interest privilege

If someone attacks you personally, you have the right to defend yourself

What is Conditional privilege

If you are a reporter and you are repeating something from an official government document or statement and it is wrong, you are not liable for that wrong statement --As long as you are citing or repeating this statement you are safe and have a right to report on that bc it is coming from the government

How can a defendant use consent

If you can show that someone gave consent to your libel, then it is not libel EX: publicity or the Bachelor On a reality TV show and sign a consent form that say they can give you alcohol, put a camera on you and then edit you anyway they want for the show --Can edit what you say out of order and you can't sue if they edit you as a villain for an episode

What are presumed damages

If you can't show a specific dollar amount, the jury decides money amount --EX: "Can't demonstrate loses but obviously this is worth $1 million" You get actual OR presumed, NOT both

How are Internet service providers treated in libel cases where the speech is republished on their website

Internet service providers are NOT liable for republishing libelous content EX: Internet chat rooms said libelous things - users would sue the internet services --Congress wanted to protect theme services --Can't sue Instagram (the service provider) BUT, can sue the NY Times if a letter is published in the NY Times

What happened in June that kickstarted Gordon & Holmes v. Courtney Love

June 2010: Love was having a Twitter fight with a news source who said Holmes was "bought off", and she responds to them saying she believed Love took a bribe to stop working for her --Love deletes it in 5-8 minutes Holmes and her firm sued Love for libel for $8 million

What is the example that explains Libel by omission or implication

Katie Holmes on front of magazine --Implication shows she is on drugs Magazine article talks about getting out of scientology and her ex --Scientology is like a drug she says She sues them for the implication that she is on drugs

What is being liable?

Liable: you are on the hook to pay money for this --Guilty: you can be sued and you'll have to pay "Liability"

Outcome of Gordon & Holmes v. Courtney Love

Love WINS She testifies that she intended to send a direct message, not to post tweet, AND said she believed that this was true when she posted it and didn't mean a "bribe" as literal like in a movie Since Love's lawyers argued Holmes was a public figure and Holmes didn't dispute that, Holmes need to prove ACTUAL MALICE (harder than is she were a private figure with negligence) --Holmes LOST case because of this... couldn't prove actual malice because Love thought it was true

What happened in the Circuit court during Seaton v. TripAdvisor LLC

Mainly focused on defamation but looked at all 6 claims Tennessee elements of defamation: 1. Published 2. Knowledge statement is false 3. Negligence in finding truth of statement Found: 1. It was published on a website 2. Discussed hyperbolic nature of text --"Dirtiest" is subjective --List was created through categories of cleanliness, service, etc. AND TripAdvisor stated it was Top 10 Dirtiest Hotels As Rated by Users --Didn't use a survey of whole population 3. Seaton didn't have any evidence during the case that this list affected business

What do you show when for the first thing you must prove: Defamation

Means proving that it was damaging to your reputation --Each repetition of offensive statements may be considered separate publications that damages can be enforced

What was the precedent used in Seaton v. TripAdvisor LLC

Milkovich v. Lorain Journal Co Said opinion can be defamation if it is implying fact or if based on false information

Explain the student from Irving, TX example in terms of anti-SLAPP laws

Muslim student came to class with a briefcase that looked like a movie bomb (really was a disassembled alarm clock) --Teachers called the police and detained him in the principal's office... Overreaction His family sued school for discrimination and racism --conservative commentators said the Mohammed family did this on purpose, so they could have a reason to sue people... family sues THEM too PROBLEM: libel has to be a factual assertion that is false - can't be an opinion --Commentators were engaged in speculation --All cases for commentators were dismissed bc of anti-SLAPP laws and family had to pay the legal fees of the commentators

What do you show when for you must prove: Falsity

Must be false --If it's true and hurts your reputation, it is NOT defamation Statement must be factually false or give a strong false impression --NOT an opinion

What do you show when for you must prove: Identification

Must identify individual or corporation

If you are a PRIVATE person (not famous), what proof must you show to prove someone libeled you

NEGLIGENCE: Didn't act with reasonable care --have to proof whoever libeled you was negligent --middle ground of favoring plaintiff and defendant equally EX: Reporter didn't contact you to verify information or comment

Since NYT v. Sullivan, what standard of fault has not been used in other cases

NOT strict liability --SCOTUS established public figures must prove actual malice

What do you show when for you must prove: Publication

ONE third-party must receive a message to be considered published --EX: Kesha sending a message to Lady Gaga. Gage is the 3rd party. Can be liable for republishing defamatory statements that other people made --If you treat is like a statement of fact in repeating someone's else's words, then you are liable

Libel per quod

ONLY libel because of the context of the situation EX: TCU 360 published a story: Mack went out on a date with Jennifer. Mack's wife's name is Cassandra. --Now, it is bad because of the context. Context damages reputation.

What is Directly identifying

Obviously identifying person or company with name or picture

For who is it difficult to sue for libel

PUBLIC figures

What is the example used to explain identifying In Fiction

RARE Bindrim v. Mitchell Mitchell wrote novels in the 70s. Bindrim was a therapist with revolutionary insights to solving problems. Bindrim used naked group therapy in hot tubs. --Mitchell wanted to write this book, so asked him to come to the sessions Book was called "Touching" --Wrote book about the sessions --Character based on Bindrim and he wasn't a good guy... changed his name, appearance and education level Bindrim sued him for libeling him, but took a while to get to trial --Put on wait, got a Doctorate and grew a beard to match character Outcome: Bindrim WON

What was the SCOTUS outcome of New York Times v. Sullivan

SCOTUS overturned jury decision because the advertorial was PROTECTED free speech --punishing editorial advertisements are an important outlet for those who wish to exercise their freedom of speech even if they are not members of the press --opinion statements are still protected even if they are published as a paid ad Defined what is a "advertorial" and gave protection to non-profit organizations when discussing public interest matters in all forms of paid-for speech Court ruled false statements published about public officials are NOT libel, unless made with ACTUAL MALICE (used strict liability) --this was just negligence

What is slander

SPOKEN defamation

Libel is governed by what law

STATE --different versions in all 50 states

What is the opinion content in Seaton v. TripAdvisor LLC

Said a reasonable person would believe this list was subjective --Used other lists showing America trusted a celeb over a SC justice

How are statements that are mostly true considered

Statements that are substantially TRUE will not be considered libelous EX: If you say Bugsy's mass-murder killed 7 people and he only killed 6, Bugsy can't sue for libel

What is the OLD standard to proving defendant fault

Strict liability --Doesn't apply anymore FAVORS THE PLAINTIFF THE MOST

What is the absolute defense in a libel suit

TRUTH

What is a Retraction

Taking back what you said --Acknowledging you did something bad Doesn't mean you don't get sued from libel, but most of the time it is effective in no lawsuit --Especially for famous people Courts can't force media to issue a retraction. --That would be compelled speech and violates the First Amendment

Who has the burden of proof to prove if a statement is true or false

The PLAINTIFF --Burden of proof is always on the person who files the lawsuit to prove their case

What are Primary publishers

Those who actually prepare the harmful messages --Clearly named as defendants in the suit Agency or org that they created the messages for would always be here --In agency situation, client would also be liable --Owner of publication is also liable Everything that appears in print or on air is the responsibility of the publisher --EX: letters to the editor, advertising messages, news releases, and other communication

What are Secondary publishers

Those who help circulate the defamatory materials --Held accountable ONLY if they had knowledge or should have had knowledge of the defamatory content EX: person who delivers the newspaper or a technician disseminated the defamatory video/ owner of a bookstore

When are business treated as PUBLIC for the purposes of libel law? (5)

Treated public if: 1. Public Ownership: Publically traded in NY Stock Exchange on the NASDAQ 2. Government Regulation: How heavily regulated is the industry --Ex: drug manufacturers 3. Size: How big they are 4. Marketing: How much they are spending on marketing --EX: Working hard to get brand awareness known - treated as public 5. Involvement in past controversy

What happened in Seaton v. TripAdvisor LLC

TripAdvisors for published a list as the "Top 10 Dirtiest Hotels in America" --Seaton sued for defamation and false-light invasion of privacy First filed in local court --TripAdvisor moved it to district court bc it met qualifications

What previous SCOTUS ruling did Sullivan try to use to stop it going to SCOTUS

Valentine argued SCOTUS lacked jurisdiction to newspaper's appeal because Valentine said commercial speech had no special constitutional protection and the harmful speech in this case was in the form of a full-page ad SCOTUS disagreed and said using Valentine as argument misinterpreted the Court's earlier intent --Valentine speech was purely commercial, while this speech was not commercial in the same way bc it communicated info, expressed opinion, recited grievances, protested claimed abuse and sought financial support on behalf of a movement whose goals were matters of public interest

What are nominal damages

Very small amounts of money like $1 Just want jury to run that you were right --Don't need money... but want to show everyone that this is not okay

What is libel

WRITTEN defamation --communication is fixed, not transitory --more serious than slander bc of its enduring nature Social media posts and broadcasted speech are considered under libel law

Explain the Yelp example in terms of anti-SLAPP laws

Yelp consumer gets sued by Prestigious Pets because the consumer posted a 1 star review when she had a bad experience with the company --Prestigious Pets thought they could bully the family to take down the review --Consumer doesn't and it goes to trial TX judge dismisses the lawsuit for violating Texas' Anti-SLAPP law --SLAPPs are BAD

What is defamation

any communication that hurts people's reputation, exposes them to hatred or contempt or damages their business

What do you show when for you must prove: Causation

bad things someone said about you CAUSED harm --Prove libel statement caused harm to you

Libel suits can ONLY be brought to court by who

can only be brought by the individual or corporation identified --dead people can't sue for libel

How did New York Times v. Sullivan change the way courts assess speech

courts now must access whether the speech the government wishes to regulate is commercial in NATURE by evaluating the CONTENT of the speech

Actual Malice

knowing falsity or reckless disregard for the truth --Knowing falsity means you knew it was false --Reckless disregard means I had good reason to doubt and said it anyway More difficult to prove than negligence bc more than just not calling you for a comment --FAVORS Defendant EX: defendant ignores a secondary source that counters what you are writing... That is actual malice --LIKE resaying something when you knew one source said it was true and the other said it was false

If you are a FAMOUS person, what proof must you show to prove someone libeled you

must prove actual malice

What do anti-SLAPP laws do

protect defendants from "Strategic Lawsuit Against Public Participation" (SLAPP) --Judge will throw out the case and force the plaintiff to pay the defendants legal fees --Makes it easy for the lawsuit to get thrown out

What is the important lesson learned from the Streisand case

sometimes filing a lawsuit brings additional attention to something negative Lawsuits are not secret --6th Amendment: right to a public trial

Common law is ____________-made law

state-made law --There is NO federal common law --Evolved from British common law

What are the purpose of SLAPPs

to intimidate people to not say what they want to say --It is a frivolous lawsuit that is meant to scare the consumer to not go to court