JOUR371 CHAPTER 4, 5, 6 Mitchell Exam 1 Study Guide
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)
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
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
▪ 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
▪ 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
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.