Individuals sued for libel have access to a variety of defenses. A key distinction between the plaintiff and defendant in such cases being that while a plaintiff must prove all six elements of his case, the defendant need only prove one suitable defense. There are numerous defenses a libel defendant may utilize in his case.
Defining Key Terms
Absolute Privilege: A complete exemption from liability for the speaking/publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts
Conditional/Qualified Privilege: An exemption from liability for repeating words of and concerning another because the original statement was made within the performance of such duty as in judicial or political contexts; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional or qualified on the premise that the reporting is fair and accurate.
Fair Comment and Criticism: A common law privilege that protects critics from lawsuits brought by those in the public eye.
Innocent Construction: Allegedly libelous words that are capable of being interpreted, or construed to have an innocent meaning are not libelous, so long as the interpretation is a reasonable one.
Single Publication Rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and online sites.
Libel Proof Plaintiff: A plaintiff whose reputations is deemed to be so damaged already that additional false statements of and concerning hum or her cannot cause further harm.
Retraction Statutes: In libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good faith effort of admitting a mistake.
Absolute Privilege: A complete exemption from liability for the speaking/publishing of defamatory words of and concerning another because the statement was made within the performance of duty such as in judicial or political contexts
Conditional/Qualified Privilege: An exemption from liability for repeating words of and concerning another because the original statement was made within the performance of such duty as in judicial or political contexts; usually claimed by journalists who report statements made in absolutely privileged situations; this privilege is conditional or qualified on the premise that the reporting is fair and accurate.
Fair Comment and Criticism: A common law privilege that protects critics from lawsuits brought by those in the public eye.
Innocent Construction: Allegedly libelous words that are capable of being interpreted, or construed to have an innocent meaning are not libelous, so long as the interpretation is a reasonable one.
Single Publication Rule: A rule that limits libel victims to only one cause of action even with multiple publications of the libel, common in the mass media and online sites.
Libel Proof Plaintiff: A plaintiff whose reputations is deemed to be so damaged already that additional false statements of and concerning hum or her cannot cause further harm.
Retraction Statutes: In libel law, state laws that limit the damages a plaintiff may receive if the defendant had issued a retraction of the material at issue. Retraction statutes are meant to discourage the punishment of any good faith effort of admitting a mistake.
Important Cases
Ollman v. Evans (1984): Evans questioned the scholarly qualifications of Ollman in an article regarding a position nomination, inciting Ollman to accuse Evans of defamation. Court ruled that Evans' writing was opinion, clearing him of charges as there was no direct proof that his writing was defamatory. Origin of The Ollman Test for Opinion.
Ollman v. Evans (1984): Evans questioned the scholarly qualifications of Ollman in an article regarding a position nomination, inciting Ollman to accuse Evans of defamation. Court ruled that Evans' writing was opinion, clearing him of charges as there was no direct proof that his writing was defamatory. Origin of The Ollman Test for Opinion.
Relevant Doctrine
Fair Report Privilege - Privilege claimed by journalists who report on events on the basis of an official record (i.e. police report). Their report must fairly and accurately depict the record's content.
1. The information must be obtained from a record or proceeding recognized as "official".
2. The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding.
3. The source of the statement should be clearly noted in the news report.
4. Not all states recognize the fair report privilege.
The Ollman Test for Opinion - Four part test created to determine whether a statement was one of fact or an expression of opinion. Not all of the tests elements need to be satisfied; rather, the answers to its questions are to be evaluated in total.
1. Verifiability
2. Common meaning
3. Journalistic Context
4. Social context
Neutral Reportage - The First Amendment can be a defense in a libel case if the following are relevant:
1. The story is newsworthy and related to a public controversy.
2. The accusation is made by a responsible person or group.
3. The charge is about a public official, public figure or public organization.
4. The story is accurate, containing denials or other views.
5. The reporting is neutral.
The Wire Service Defense - Defense for republication. Applicable to libel defendants if four factors are met:
1. The defendant received material containing the defamatory statements from a reputable news gathering agency.
2. The defendant did not know the story was false.
3. Nothing on the face of the story could have reasonably alerted the defendant that it may have been incorrect.
4. The original wire service story was republished without substantial charge.
Jurisdiction Test - Determines the exercise of jurisdiction.
1. Whether the defendant purposefully conducted activities in the state.
2. Whether the plaintiff's claim arises out of the defendant's activities there, and
3. Whether the exercise of jurisdiction would be constitutionally reasonable.
Section 230 Immunity - Offers immunity to websites in libel claims, although the protection is not absolute.
It does apply to Internet Service Providers (ISP) and websites if:
1. The ISP/site is a content distributor and not a content creator.
2. The ISP/site did not interact directly with the content.
Also applies when:
1. ISP/sites correct, edit, add or remove content so long as they don't substantially alter the meaning.
2. ISP/sites solicit or encourage users to submit content.
3. ISP/sites pay a third party to create or submit content.
4. ISP/sites provide forms or drop downs to facilitate content submission by users - so long as such forms are neutral.
Fair Report Privilege - Privilege claimed by journalists who report on events on the basis of an official record (i.e. police report). Their report must fairly and accurately depict the record's content.
1. The information must be obtained from a record or proceeding recognized as "official".
2. The news report must fairly and accurately reflect what is in the public record or what was said during the official proceeding.
3. The source of the statement should be clearly noted in the news report.
4. Not all states recognize the fair report privilege.
The Ollman Test for Opinion - Four part test created to determine whether a statement was one of fact or an expression of opinion. Not all of the tests elements need to be satisfied; rather, the answers to its questions are to be evaluated in total.
1. Verifiability
2. Common meaning
3. Journalistic Context
4. Social context
Neutral Reportage - The First Amendment can be a defense in a libel case if the following are relevant:
1. The story is newsworthy and related to a public controversy.
2. The accusation is made by a responsible person or group.
3. The charge is about a public official, public figure or public organization.
4. The story is accurate, containing denials or other views.
5. The reporting is neutral.
The Wire Service Defense - Defense for republication. Applicable to libel defendants if four factors are met:
1. The defendant received material containing the defamatory statements from a reputable news gathering agency.
2. The defendant did not know the story was false.
3. Nothing on the face of the story could have reasonably alerted the defendant that it may have been incorrect.
4. The original wire service story was republished without substantial charge.
Jurisdiction Test - Determines the exercise of jurisdiction.
1. Whether the defendant purposefully conducted activities in the state.
2. Whether the plaintiff's claim arises out of the defendant's activities there, and
3. Whether the exercise of jurisdiction would be constitutionally reasonable.
Section 230 Immunity - Offers immunity to websites in libel claims, although the protection is not absolute.
It does apply to Internet Service Providers (ISP) and websites if:
1. The ISP/site is a content distributor and not a content creator.
2. The ISP/site did not interact directly with the content.
Also applies when:
1. ISP/sites correct, edit, add or remove content so long as they don't substantially alter the meaning.
2. ISP/sites solicit or encourage users to submit content.
3. ISP/sites pay a third party to create or submit content.
4. ISP/sites provide forms or drop downs to facilitate content submission by users - so long as such forms are neutral.
Current Issues or Controversies
As new technologies emerge (i.e. Yelp) so do more opportunities for defamation suits. The law must adapt to regulate and oversee, however its often slow in catching up, especially considering the rate at which technology accelerates.
As new technologies emerge (i.e. Yelp) so do more opportunities for defamation suits. The law must adapt to regulate and oversee, however its often slow in catching up, especially considering the rate at which technology accelerates.
My Questions & Concerns
1. In forum shopping, what factors of a favorable jurisdiction would a plaintiff look for?
2. What happens if the plaintiff can prove the parody/satire/rhetorical hyperbole caused direct damages?
1. In forum shopping, what factors of a favorable jurisdiction would a plaintiff look for?
2. What happens if the plaintiff can prove the parody/satire/rhetorical hyperbole caused direct damages?
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