Defenses -- Anti-SLAPP statutes

Defenses

Truth is generally a complete bar to recovery by any plaintiff who sues for libel. Ensuring that any potentially libelous material can be proven true can avoid needless litigation.

Fair report. Libelous statements made by others in certain settings often are conditionally privileged if the reporter, in good faith, accurately reports information of public interest. This privilege usually applies to material from official meetings such as judicial proceedings, legislative hearings, city council meetings and grand jury deliberations. In most states, accurate reports of arrests, civil and criminal trials and official statements made to, by and about law enforcement officials are privileged. Reports of this nature must be accurate and fair in order for the reporter to invoke the fair report privilege, and it is advisable that the reporter explicitly attribute the information to the official source.

Neutral report. Although less broadly recognized, this privilege can protect the publication of newsworthy but defamatory statements made about public figures or officials by a responsible, reliable organization or person, as long as the statements are reported accurately and impartially. Legal recognition of neutral reportage arose in 1977 after three scientists sued The New York Times for reporting that the National Audubon Society called the scientists “paid liars” when the society said that “scientist-spokesmen” of the pesticide industry were being paid to falsely state that the pesticide DDT did not kill birds. The U.S. Court of Appeals in New York (2nd Cir.) reversed the $20,000 jury award to each scientist, holding that the First Amendment protects the “accurate and disinterested reporting” of charges made by a “responsible, prominent organization.” The public interest in being informed about “sensitive issues,” the court noted, requires that the press be able to accurately report, without fear of liability, newsworthy accusations made by responsible, reputable organizations.11 Other courts have adopted the privilege in narrowly defined circumstances and extended it beyond the Audubon holding to include statements made by a responsible person (in addition to those made by a responsible organization) about a public official (in addition to those made about a public figure). The privilege has been adopted in only a few jurisdictions and expressly rejected in several others. 

Third-party postings. Internet publishers generally are not responsible for libelous information posted by their readers unless the publishers exercise editorial control over the content. Section 230 of the Communications Decency Act of 1996 insulates providers of interactive computer services from liability. Thus, news sites that let readers post comments will not be liable for those comments.

However, there are ways that this protection can be lost. For example, these news sites are not protected by Section 230 if, rather than merely posting comments provided by third parties, their operators create the online posting in question, extensively edit it, or incorporate the comments into subsequent news stories. Moreover, a website publisher may lose protection when he or she “prompts” responses from users. The U.S. Court of Appeals in Pasadena (9th Cir.), for example, held in 2007 that the roommate-matching website Roommates.com was protected from liability for comments posted by its users when it provided open fields for their “additional comments,” but the site lost Section 230 immunity when it provided “drop-down” menus with answers for users’ responses.12

Opinion is still protected speech under the First Amendment, although the Supreme Court limited the formerly broad reach of opinion protection in Milkovich v. Lorain Journal Co.13 The Court ruled that there is no separate opinion privilege, but because factual truth is a defense to a libel claim, an opinion with no “provably false factual connotation” is still protected.

As a result of this decision, courts will examine statements of opinion to see if they are based on or presume underlying facts. If there are no facts given to support the opinion, or these facts are false, the “opinion” statements will not be protected.

Consent. If a person gives permission for the publication of the information, that person cannot later sue for libel. However, denial, refusal to answer or silence concerning the statement do not constitute consent.

The statute of limitations for bringing libel suits varies from state to state. The time limit for filing a libel lawsuit generally starts at the time of the first publication of the alleged defamation. If the plaintiff does not sue within the statutory time period, the litigation can be barred.

Although a retraction is not usually considered an absolute defense to a libel claim, it may reduce the damages a defendant must pay if found liable for defamation. However, retracting or correcting too much could be seen as an admission of falsity, which would be used against you in a libel suit. Before agreeing to publish a retraction, consult an attorney or contact the Reporters Committee for more information.

Anti-SLAPP statutes, which permit early dismissal of lawsuits that chill the exercise of free-speech rights, may help news organizations defend some libel suits. SLAPP stands for “strategic lawsuits against public participation,” and anti-SLAPP statutes protect those engaged in debate about controversial matters from lawsuits that would deter the exercise of their constitutional rights.14 Generally, anti-SLAPP statutes apply to news organizations as well as individuals exercising their free-speech rights.


Notes:

11. Edwards v. National Audubon Society, Inc., 556 F.2d 113 (2d Cir. 1977), cert. denied, 434 U.S. 1002 (1977).

12. Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir. 2007), aff’d in part, rev’d in part, vacated in part en banc, 521 F.3d 1157 (9th Cir. 2008).

13. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990).

14. See, e.g., Briggs v. Eden Council for Hope & Opportunity, 969 P.2d 564 (Cal. 1999) (holding that speech made in connection with an “official proceeding” is made in connection with a “public issue” for purposes of the anti-SLAPP statute); Lafayette Morehouse, Inc. v. The Chronicle Publishing Co., 44 Cal. Rptr. 2d 46 (Cal. Ct. App. 1995) (holding that the anti-SLAPP statute protects newspaper from meritless libel suit), cert. denied, 519 U.S. 809 (1996).