LibelSo
far this semester we have talked about WHAT to write and HOW to write. Now it is time to
talk about what NOT to write.
While the First Amendment of the U.S. Constitution, in part, says that Congress (or
state and local governments) shall make no law restricting freedom of speech or the press,
there ARE some areas of speech that have been declared unprotected by the courts. As a
reporter you need to be aware of some of these limitations.
I cover these areas in more detail in my Journalism 18 -- Introduction to Mass Media
course, but you need to have at least an introduction to the concepts of libel.
Libel is a written defamation of character. Similar to libel is slander, which is a
written definition of character. But the laws that talk about libel and slander are
usually similar enough that it really doesn't matter.
To understand libel in its fullest you have to go into greater detail and study than
we'll go here. There is no national libel law, each state has its own, but we can at least
look at the common elements of the law and get a general understanding. To see even more
about libel, check out this web site.
- http://www.hfac.uh.edu/comm/media_libel
The keys to understanding libel include a general definition of what libel is, what it
is not, and what can happen if you if you libel someone.
There are four components to libel: Identification, publication, defamation and fault.
The first three MUST be present for libel while the fourth may or may not be a major
factor.
Identification
To libel someone in a news story you must identify that person. But that does not mean
you actually have to name the person. Just giving enough description of the person so that
a normal person would know who you are talking about is enough. The description may seem
vague to you, but say, for instance, that you talked about the redhead albino who normally
shows up for an event, it is likely that everyone who knows anything about the event will
know who you are talking about.
One of the concepts we've learned this semester is that when you introduce a source to
a story you need to have some kind of identification or title of who that person is. This
could be dangerous if you make a mistake and have the wrong description or misspell a name
that turns out to be someone else's real name. You might, for instance, talk about Joanne
Smith who lives on Oak Street. Oops, wrong Joanne Smith, the story is really about Joanne
Smith who lives on MAPLE Street. Depending on what you've said about her, you could have
met the first element of libel.
The temptation might be to NOT name and identify sources, but if you are too vague you
might also accidentally make readers think they know who you are talking about. Again,
depending on what you've written you may meet the first element of libel.
Publication
The second element requires you to share the defamation with a third party. Certainly
if you publish the story in a newspaper or magazine, or air it on radio or TV (even though
it is spoken in broadcast it is usually considered libel rather than slander). But
"publishing" a story can be just sharing it with a third party. Sharing it with
your editor probably would not count as sharing it with a third party, but under some
circumstances, I guess it could.
One journalists was even accused of sharing a libelous statement with a third party
merely by the types of questions he asked another source.
Defamation
Of course, a real key to libel is that the statement must be defamatory. It must serve
to change the minds of people about the person libeled. This is where you get into
trouble.
Now, defamation does not mean simply saying something bad about another or something
negative. Negative and bad things are said and written about others all the time. What we
are talking about here is something that truly changes the reader's opinion of someone in
a negative way, something that subjects the person to shame, ridicule, ostracization, etc.
The statement must also be untrue.
Let's say, for instance, that the person you are writing about likes to brag about
being associated with the Mafia.Your story says he is a member of the Mafia and just
confirms what people think about the person. He might NOT be a member of the Mafia, but
since that is the general perception of him, you probably have not libeled him.
And just saying that a person stinks is not libelous. Statements that are clearly
presented as opinion usually are not libelous. It is only when you present something as
fact.
There are two types of statements that can be defamatory: Libel per se and libel per
quod.
Libel per se is something that is clearly libelous on its face. Saying that a person is
guilty of a crime that he has not been convicted of is a good example of libel per se. In
a story about an arrest, for instance, don't say that someone committed a crime. She is
ACCUSED of committing a crime or has been CHARGED with a crime.
Libel per quod is trickier. It is something that is defamatory by its use. Use of the
words in one context would be acceptable, but unacceptable in another context. You might,
for instance, say that Mary Jones on Oak Street just became a mother of a bouncing baby
boy. Surely there is nothing wrong with this. But if it was Mary Jones who lives on Maple
Street who had the child and if the Mary Jones who lives on Oak Street is a nun you COULD
have a problem.
The word "fix" is certainly harmless if you are talking about a toaster. But
if you are talking about a parking ticket you might be getting into a defamatory area. If
you are talking about heroin you've really got to be careful!
Fault
Whether the reporter is at fault for printing a defamatory statement might also
determine whether you can be sued for libel. If the reporter had every reason to believe
that the information was accurate, he MIGHT not be guilty of libel. Just who is libeled,
as we'll see lower, plays a role. The rules are different for public officials and public
figures than they are for the average person on the street.
What is NOT libelous?
Identification, publication and defamation must all be present before there is libel.
And as I said, fault may play a role. But even with this knowledge you'll find things in
newspapers every day that you would consider libelous based just on this knowledge. You've
got to also know what is NOT libelous. The following are generally considered as defenses
to libel.
Truth
First and foremost, the truth cannot be libelous. If you call someone a criminal and he
has been convicted of the crime, there is no libel. If you say someone infected his lover
with AIDS and it is true then the fact that there is shame, ridicule or other negative
consequences does not mean that there is libel.
But beware, just because you THINK something is true does not make it true. Neither is
something that "everyone knows is true." Truth is a legal concept that must be
provable in a court of law.
Privilege
Some types of information have what we call privilege. There is "absolute"
privilege and there is "qualified" privilege. Understand the former and
understanding the latter is easy.
"Absolute" privilege is something that is protected by law, statute, court
order, etc. For instance, I might testify against you in a court of law and make a false
statement about you. Let's say I saw you rob a bank. You didn't. I made a mistake. You
cannot sue me for making a defamatory statement because I was under court order to tell
the story as I believed it to be. Other protected statements might be police reports or
official government records.
Now, as a reporter, let's say that I am covering a trial or writing a story based on a
police report. If the testimony or the report is inaccurate I could easily write a story
that defamatory about you. But if my story is a FAIR and ACCURATE summary of the
information that has an absolute privilege
Fair Comment
Fair comment would include making opinion statements about others. Let's say that I am
a movie critic and I say that you stink in your latest movie. I'm allowed to make
"fair comment" about things like that.
Also related to fair comment is a 1964 Supreme Court ruling in the case of New York
Times vs. Sullivan. In this case the court ruled that the press and others must be
free to comment on the performance of public officials, indeed even state things as fact,
without fear of making minor mistakes. I can say that Bill Clinton allowed the Chinese to
steal nuclear secrets from the United States. I might be in error, but if I have reason to
believe the information is true, then I am allowed to make them. The only time I could be
sued for libel is if there is ACTUAL MALICE involved; that is, it can be proven that I
knew I was making a false statement or that if I had reason (or should have had reason) to
think there was falsity and I was negligent in investigating the information.
In other words, I had a degree of fault in making the defamatory statement. New
York Times vs. Sullivan applies only to public officials: Those elected to office or
appointed to public office. Since 1964 the courts have extended the case to include public
figures. There are also a slew of cases that have altered the element of fault. For
instance, newspapers under a tight deadline might be able to make more mistakes that a
magazine with more time to check the facts.
New York Times vs. Sullivan is the reason you see publications like the
National Inquirer make outrageous statements about public figures. The public figures
would have to prove that the publication KNEW the information was inaccurate. How do you
prove what somebody knew, and when? It can be done, but is difficult.
Another thing to keep in mind is that quoting someone who makes a libelous statement
does not get you off the hook. You are just as guilty because you are perpetuating the
libel.
Some people think that running a retraction will get them off the hook, too. It won't.
A retraction is an admission that you made a mistake. The theory is that if you say
something defamatory about someone by accident you can set the record straight by running
a correction and letting people know that there was a mistake. But it is not the same. Not
everyone who read the original statement will see the retraction. And even if they do,
they'll suspect that there must still be SOME truth to the statement.
In some states, such as California, the types of monetary damages that you can be sued
for can be limited. But you can still be sued.
There are three types of damages that you can be sued for: Special, general and
punitive. The first two are for out-of-pocket losses a person might incur because of your
defamation and for loss of reputation. It is the third that usually hurts, though.
Essentially, the courts say, "You did wrong and you need to be punished for it."
None of the three types of damages are fun to pay, but when you hear of large libel
judgments it is usually the punitive damages that are high. And of course, even if you
successfully defend yourself from a libel suit, you can incur expenses from your defense
You should not back off from publishing a story with negative material in it, but you
want to use common sense and not publish something that will get you sued for libel.
