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Plaintiff is who?

Plaintiff is who?

Description

School: University of Mississippi
Department: Journalism and Mass Communications
Course: Communications Law
Professor: Charles mitchell
Term: Fall 2016
Tags: Communications and Law
Cost: 50
Name: JOUR371 Quiz 2 Study Guide
Description: These notes cover all of chapters 4, 5, and 6 - all about libel, defamation, and their defenses.
Uploaded: 02/22/2017
8 Pages 7 Views 5 Unlocks
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JOUR371 CHAPTER 4, 5, 6 Mitchell Exam 1 Study Guide 


Plaintiff is who?



CHAPTER 4 & 5: LIBEL AND DEFAMATION • Plaintiff – complainant; term used to describe a party who initiates  a court action in order to seek a legal remedy; opposite of a  defendant

• Tort – Greek word for “wrong”; a civil wrong or wrongful act,  whether intentional or accidental, from which damage occurs to  another

o In some jurisdictions, like California for example, even verbally  threatening to sue/intimidate someone else’s freedom of  expression is considered a tort

o In Mississippi, the malicious use of civil prosecution says that  – if someone tries to sue you in court, but their case is not  backed with evidence of your wrongdoing, then you can turn  around and sue them for intimidating your freedom of  expression

• Libel – the written or broadcast form of defamation; a tort making  a person or entity (like a newspaper, magazine or political  organization) open to a lawsuit for damages by the person who can  prove the statement about him/her was a lie; falls under common law (but has variations between states)


What is Tort



o Slander – the oral form of a libel  

o Civil libel – when the injured party is seeking money to  compensate for the damages of another (this is the type of  libel we’ll focus on)

▪ Types of Civil Libels –

• Libel Per Se – means “by itself” or “on the face of  it”; type of libel that is obviously damaging to a  person/entity’s reputation; the entity libeled in this  manner does not have to prove that they suffered  damage to their reputations, monetary loss or  other injuries; this type of libel requires no  

witnesses in court; for example, if you say,  

“Attorney Peter has no license to practice law”, the  attorney could easily prove this to be a false  

statement and can therefore press charges against  the speaker

• Libel Per Quod – means “hidden”; the false  statement is not inherently defamatory and has to  be evaluated in the context of additional facts;  damage must be proven; this type of libel requires  a witness to testify and say that the statement was  understood and the reputation of the plaintiff was  damaged; for example, if someone says “that  NASCAR driver put nitrogen in his tires” and the  listener doesn’t know whether or not that is against  the rules, this is libel per quod against the speaker


What is Libel?



Don't forget about the age old question of cs 2150 uva

▪ Social media created a world where libel (falsity) is faster,  easier and often anonymous; pre-internet rules still apply  (for the most part), but it is certainly more challenging to  establish

• The Communications Decency Act of 1996 (CDA) – states that a provider of an interactive computer  service (like social media platforms) shall NOT be  treated as the publisher or speaker of any  

information provided by another information

content provider; only the individuals posting within  the platforms can be accused of libel

• In other words, you create, you own.  

o Elements of a libel:

▪ Published – spoken, written, or placed where others may  see or hear; communicated; there is no specific number  of people who must see or hear it, but it must be more  than just the plaintiff

• If you text someone and call them a liar, it’s not a  libel, because it was not published; if you posted  something like that on Facebook, it IS a libel  

because it has been published.

• Republishers – when someone reiterates false  information; anyone who had a choice or control  over whether to repeat the content/message; this  is also considered a libel We also discuss several other topics like cs 3341 utd

o Republishers vs. Vendors – Vendors are those  who merely distribute (like the Postal Service,  If you want to learn more check out gsu cis

or a bookstore); they are not responsible for  

and have no authority over the contents that  

are passed along and therefore are not liable  

for a libel.

▪ False statement of fact –

• Fact – an objectively provable event or occurrence;  if it can’t be proven, it isn’t a fact

• Different from expressing an opinion; if you say “I  think Trump is a lousy president” this is pure  If you want to learn more check out ltns

opinion (“value judgment”) and is therefore  

protected by the First Amendment

• “Trump stole from the charity fund” is a statement  of fact, and if it is untrue, then it is considered  

defamatory and punishable

• “I think Trump is a lousy president because he stole  from the charity fund” is a mixture of opinion and  fact and IS still defamatory and punishable

• Who proves the facts? – If a plaintiff sues and says,  “that’s not true” then it is the burden of the  

defendant to prove the truth.

▪ Defamatory – a defamatory statement with the nature of  lowering the esteem of a person or entity, in other  words, making people think less of a person or entity;  in terms of journalism, the omission of critical  information that a person stated that alters how  people perceive the speaker is considered defamation

• Example: NY Times vs. Sullivan – L.B. Sullivan  (plaintiff) was the police commissioner of  

Montgomery, AL and the NY Times (defendant) was  paid to print an ad accusing Alabama officials of  being unjust; as a result, the plaintiff had to prove  that the statement resulted in actual malice,  

meaning that the publisher knew the statement was  false or acted with reckless disregard to the truth or  falsity. This case made it difficult for public officials  (people who, either by choice or circumstance,  

find themselves to be at the center of a matter of  public concern) to sue for libel.

o But how do you differentiate between a  

public official or a private individual? Ask  If you want to learn more check out thea 211a textbook notes

yourself:

▪ Did the controversy exist before the  

allegedly libelous publication?

▪ Did the plaintiff voluntarily join the  

discussion? To what extent did the  

plaintiff jump into the matter?

▪ And, in joining, did the plaintiff try to  

influence the public?

▪ Also, was mass media used?

▪ Was the matter current?

▪ Against an identifiable person or entity

▪ Believable

▪ Results in damage to reputation

• Reputation is a commodity; individuals, companies,  brands…they work for their perceived reputation to  be positive; whens someone falsely accuses them of  something, it can often be significantly damaging to  their reputation

• Some people, however, are actually considered to  be ‘libel proof’ if they had no good reputation to  

begin with; for example, if someone is in prison for  

murder and someone publishes a false statement  

saying that this convict beat his dog, the convict  

cannot sue because he did not have a reputation to  We also discuss several other topics like stat 155

damage

CHAPTER 6: THE DEFENCES OF LIBEL

• Occasionally, someone will take someone to court over something  he/she simply got angry about. In this case, where the defendant  can show that there is no basis for the suit as a matter of law, a  summary judgment can result, ending in a savings of time, money,  and effort.

o Remember, there’s a difference between something being  “true” and something being “provably true”.  

• Is there a time limit to file a lawsuit over something?

o Yes, if a certain amount of time passes (different from state to  state), the lawsuit will expire and the plaintiff will lose the  opportunity to file the lawsuit.

▪ Mississippi circuit courts have a 1-year statute of  limitations, which starts when the content was  

published, printed, or posted.  

• Social media in this Internet Age creates  

complications about which court has jurisdiction  

over a specific online-based libel cases.  

• In addition, lawsuits cannot be intermingled in  

international affair. For example, if someone in  

Japan publishes a defamatory statement about an  

American product, the American plaintiff cannot  

conduct a lawsuit.  

▪ Say, a plaintiff didn’t see the content at the time it was  published. ‘Reruns’/’Retweets’ don’t restart this statue  of limitations.  

▪ It can become complicated if there’s a new publication  based on old, libelous information, however.  

• Privilege – concept in law where someone has some  advantage/honor; in legal terms, ‘privilege’ means protected due  to the context or circumstances; a published, false statement of  fact is not blameworthy due to the source or context and was not  intentionally inciting actual malice (lawyer-client privilege, doctor patient privilege, etc.)

o Types of privilege:

▪ Full privilege – based on official and private contexts • For example, elected officials, speakers, and  

witnesses are protected from libel during  

government hearings. Also, an official published  

press release or press conferences, as well as court

testimonies, documents, and records in a lawsuit  

docket are also protected from libel  

▪ Qualified privilege – is derivative; based on reliance; a  false statement of fact will NOT be actionable if the  

source is a privileges document or proceeding AND the  report itself is a fair and accurate summary of the  

privileged document proceeding

• Identity –

o The use of a plaintiff’s name is not required for it to be  considered a libel

▪ Whether or not an identity is clearly implied – can be  established by the context.

• Believability –

o Overstatements can be thought of as opinion (not believable),  or not believable (not to be taken seriously); if no one believes  a statement, reputation is not damaged, and it is not a civil  libel.

• Damages –

o Injury to reputation, standing in the community, personal  humiliation, mental suffering and anguish cannot be calculated  in a single, definitive objective method

▪ Damages are scalable due to the severity of the injury  to reputation.

o Punitive damages – plaintiffs may ask a jury to impose  damages in addition to actual or special damages to punishing  a defendant; more like a fine than a compensation

▪ Mississippi and many other states have retraction  

statutes that, when properly followed, cancel the risk of  punitive damages being given at trial. (MS Code 95-1-5  in 2013)

o How to determine whether or not a damage is worthy of a  lawsuit:

▪ Was there a publication to at least one other person? Or  was there a republication by choice?

▪ Was there a statement of fact about an identifiable  person? Was it false/defamatory?

▪ Was the statement of fact about a business, product, or  public figure?

▪ Is the speaker to blame for the false statement of fact or  is it an accurate report from a privileges source?

▪ Was the statement believable?

▪ Was reputation, in fact, damaged? (Per se, or as a loss of  sales) Was it bad enough to warrant punishment? (Was  there a retraction?)

• Most cases of libel in communications arise from sloppiness,  inattention, or a rush to judgment.

o There are some escape clauses for media practitioners, but  the best practice is just to be careful in what you publish.

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