Libel

From the First Amendment Handbook

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. Each state creates its own body of libel law, although the First Amendment requires plaintiffs or prosecutors to prove fault before a news organization can be held liable for defamatory communications.

Generally, courts consider six different legal elements in libel cases: the defamatory nature of the communication, how it was published, the truth or falsity of the claims, whether it is "of and concerning" an individual, reputational harm caused and the degree of fault. The defendant in a libel claim also may have specific defenses available, often including anti-SLAPP statutes.

Companies can also bring suits for product disparagement. Criminal libel charges also pop up from time to time, and some suits are over the infliction of emotional distress. Journalists should know some basic tips for avoiding libel suits.

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Common questions

How can I oppose a frivolous lawsuit? (anti-SLAPP laws)

Although many SLAPP lawsuits would likely fail on their legal merits if fully litigated, the plaintiffs who bring them consider these causes of action successful if they effectively silence critics. To prevent this chilling effect on speech about matters of public concern, twenty-seven states, along with the District of Columbia and a U.S.

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Should I be paying a lawyer for pre-publication review?

Pre-publication review by an attorney is not a magic answer to avoiding a libel suit. However, if a case goes to court, it will often help by showing the level of care taken to get facts straight.

But "pre-pub" can also delay the posting of your stories, and can be quite expensive. Most daily newspapers have never had lawyers read over every story before it goes into print. Magazines, especially monthlies, may well pay for that review, and broadcasters often have scripts approved if they know they could be controversial and they have the time to wait.

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How important is it to get a quote exactly right?

In the leading case governing journalists' use of quotations, Masson v. New Yorker Magazine, Inc., the U.S. Supreme Court addressed the issue under its “substantial truth” doctrine, which allows minor inaccuracies to be ignored so long as the gist of the statement remains true. Accordingly, the deliberate alteration of a quotation does not render the statement false unless the alteration “results in a material change in the statement’s meaning.”

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Can I get in trouble for posting what many would consider offensive speech?

The U.S. Supreme Court recently made clear that even the most repugnant speech on public issues is entitled to First Amendment protection. Accordingly, such "morally flawed," highly offensive speech like that spewed outside the funerals of fallen soldiers cannot give rise to tort liability against its speaker, the Court held in Snyder v. Phelps.

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Can a corporation sue me for harm to its reputation?

Yes. In fact, businesses regularly sue for defamation because their economic interests are often tied to their reputations.

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When does the statute of limitations start to run for claims based on online publications?

The majority of courts now hold that the single-publication rule applies to Internet publications, thereby establishing the first publication as the start of the statute of limitations for an online libel claim.

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Do I have to create terms of service or privacy agreements?

No. The elements required for Section 230 immunity to apply to web site publishers and other interactive computer services do not include the establishment, implementation or publication of standards of acceptable use for the site or statements addressing its handling of users’ personal information.

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Am I protected if I use the word "alleged" in crime stories?

Only if you attribute the statement to an official source that you are privileged to report. If you opt to use the verb "allege" in a crime story, the subject of the sentence should be "police," "the law suit," "an indictment" or some other official source, which is then fairly and accurately reported.

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More topics:

Anti-SLAPP laws

Short for strategic lawsuits against public participation, SLAPPs have become an all-too-common tool for intimidating and silencing critics of businesses, often for environmental and local land development issues.

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Immunity for reader comments under Section 230 of the Communications Decency Act

The enactment fifteen years ago of a seminal piece of federal legislation intended to protect children from harmful material on the Internet has provided online publishers broad protection from claims based on speech posted by third parties.

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Libel tourism: Protecting yourself at home and abroad

In addition to knowing what they can be sued for, web-based authors should also be aware of where they can be sued. The accessibility of online publications from virtually anywhere worldwide has presented jurisdictional issues not necessarily seen in cases involving traditional media, namely the question of whether digital journalists can be sued in courts hundreds or thousands of miles away from where they live and work.

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Protection for libelous statements made by others: Fair and accurate report and neutral reportage privileges

Journalists are generally immune from liability when they fairly and accurately report incorrect information that comes directly from an official source. This would include material contained in final reports of government bodies and statements made in official meetings and proceedings open to the public and concerning a matter of public interest, provided the statements are fair and accurate reports and abridgements of the underlying information.

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Anonymous speech online: When must the identity of a masked commenter be revealed?

Anonymous speech is prevalent on the Internet, of course, but courts nonetheless are often asked to force a web site to reveal the identities of anonymous speakers. Courts are often willing to order the unmasking when there is clearly a valid cause for a libel claim against the speaker.

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Liability insurance: Defending yourself when there's no corporate ownership safety net

Media companies have relied on insurance policies to pay for legal defense fees in libel and invasion of privacy lawsuits for years. Most digital journalists, however, cannot afford to pay out of pocket the hundreds of thousands of dollars that lawsuits can cost. And as web reporting proliferates, online content providers are starting to make easy targets for plaintiffs, particularly those looking to suppress speech they don't like.

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Commenting beyond your own story

When Massachusetts Superior Court Judge Ernest B. Murphy's libel lawsuit against the Boston Herald and four of its reporters came to trial in January, the case garnered significant national media interest. But what captured the attention of media pundits wasn't the alleged libelous statements -- the Herald claimed Murphy told a rape victim to "get over it" -- or the fact that a rare libel lawsuit by a public official over comments about his job performance actually made it to trial.

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Reporting on criminal suspects

Stories about crime make up a significant proportion of the news. They also often require the most precise reporting and writing because asserting that someone committed, or has been accused of committing, a crime is defamatory on its face.

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Using criminal libel to silence online publishers

The U.S. Supreme Court ruled more than 40 years ago in Garrison v. Louisiana that state criminal libel statutes that permit prosecution for publication of truthful information violate the First Amendment. Yet, some states -- less than half but enough to cause concern for publishers -- still have these laws on the books, and in the absence of a court decision declaring them unconstitutional, they remain good law.

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Defamatory statements about conduct

Many libel suits are filed for attacks on personal character traits or lifestyle. For example, reputations can be damaged by reports that suggest people are dishonest or cruel or engage in conduct that deviates from generally accepted norms.

However, some statements, particularly those about a woman’s sexual conduct, that once led to libel judgments would likely not do so today given society’s constantly changing social mores.

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Defining "actual malice"

The case that established “actual malice” as the degree of fault with which the media must have published a defamatory statement about a public official for him or her to successfully sue was a product of the civil rights struggle in the South in the early 1960s. A discussion of the facts of the case is instructive in helping define the standard.

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Protection for satire and parody

Satire and parody are important forms of political commentary that rely on blurring the line between truth and outrageousness to attack, scorn and ridicule public figures. Although they may be offensive and intentionally injurious, these statements contain constitutionally protected ideas and opinions, provided a reasonable reader would not mistake the statements as describing actual facts.

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Correcting or clarifying published mistakes

Corrections and clarifications can often help avoid lawsuits or, at the very least, mitigate damages resulting from them. However, journalists should be aware of the implications that arise from admitting a fact was wrong.

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When omission of material facts may constitute defamation

Digital journalists and other publishers may opt, for whatever editorial reasons they choose, to omit certain information from a particular report. In some cases, such a decision crosses the line from the ethical issue of one-sided journalism to the legal issue of libel by omission.

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