Introduction -- Defamatory communication -- Publication -- Falsity
Libel occurs when a false and defamatory statement about an identifiable person is published to a third party, causing injury to the subject’s reputation.
A libelous statement can be the basis of a civil lawsuit brought by the person or group allegedly defamed or, in rare cases, a criminal prosecution.
There is no uniform law for libel. Each state decides what the plaintiff in a civil libel suit must prove and what defenses are available to the media. However, constitutional law requires plaintiffs or prosecutors to prove fault before a news organization can be held liable for defamatory communications.1 When a news organization is sued, the court must weigh protection of a person’s reputation against the First Amendment values of freedom of speech and expression. Generally, this requires an examination of six different legal elements — defamatory communication, publication, falsity, identification, harm and fault — as well as a number of defenses available to media defendants.
A defamatory communication is one that exposes a person to hatred, ridicule, or contempt, lowers him in the esteem of his fellows, causes him to be shunned, or injures him in his business or calling. Defamation can take the form of libel (published or broadcast communication, including information published on a website) or slander (oral communication).
Courts generally are required to take the full context of a publication into account when determining whether the publication is defamatory. However, a headline, drawing, cutline or photograph taken alone can, in some cases, be libelous.2
For purposes of a libel lawsuit, publication occurs when information is negligently or intentionally communicated in any medium, from a newspaper to a website, to someone other than the person defamed.
The media can be liable for the republication of a libelous statement made by another person or entity but quoted in a news article.3 Letters to the editor that contain unsupported derogatory accusations or false statements, as well as advertising appearing in a publication, also can be the basis of a libel suit against the news publisher.
(Comments posted to a website usually won’t subject the news website to liability; however, see “Third-party postings” below.)
It often has been said that truth is an absolute defense to libel.4 Absolute accuracy is not the appropriate criterion. Rather, the general standard is that the information must be substantially true.
Under the common law, the media defendant had the burden of proving that the statements challenged by the plaintiff were true. The Supreme Court changed that standard for libel suits involving public officials and public figures.5 Thus, plaintiffs are required to prove that the statements of fact were false.
As a result of the Supreme Court’s decision in Philadelphia Newspapers, Inc. v. Hepps, private individuals suing for libel also must prove the statement was false if it involved a matter of public concern.6
An altered or inaccurate quotation that damages the reputation of the person quoted can be actionable.7
Notes:
1. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
2. See, e.g., Kaelin v. Globe Communications Corp., 162 F.3d 1036 (9th Cir. 1998).
3. See, e.g., Khawar v. Globe International, Inc., 965 P.2d 696 (Cal. 1998), modified, No. S054868 (Cal. 1998), cert. denied, 526 U.S. 1114 (1999).
4. However, in at least one state, Rhode Island, truth is not a defense when the statement was made with malicious motives. R.I. Const. art. I, § 20; R.I. Gen. Laws § 9-6-9 (1998). In 2009, a federal appellate court interpreting Massachusetts state law held that when the speaker has “ill will, ” true statements about a private figure can be libelous. Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009).
5. Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
6. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
7. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).
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