Libel: What is it?
Simply put, libel is injury to reputation. Anything that exposes someone to hatred, shame, ridicule or disgrace is by definition libelous.
We can injure someones reputation in many ways: by accusing them of a crime or of a moral failing like dishonesty or of shady business practices. The injury might be limited to their good name, or it might have financial consequences, such as in lost business.
Unless we can successfully defend what we publish, we could be liable for monetary damages. Some media outlets have been ruined by big libel judgments.
There are defenses against action for libel. The surest is that something published is true. But knowing or believing something is true and proving it in court are two very different things. In reality, then, whatever we say must not only be true; it must be provably true.
As a practical matter, however, we rarely assert on our own authority that someone is a pedophile, say, or a serial adulterer, and so its not up to us to provide evidence to prove what we have said is true. We usually rely on some authority, on a person or a document, to back up what we say.
In such cases we make use of the principle of privilege, which means the right to say something injurious to anothers reputation without incurring legal liability. The law recognizes two kinds of privilege:
Absolute privilege is enjoyed by public officials acting in their official capacities.
A congressman can call someone a liar and a thief while hes on the floor of the House, and in many other places, without fear of libel action. A prosecutor can call someone a murderer or a child molester in a courtroom or a press conference, even if the subject is later acquitted by a jury, without concern about libel. The police PIO who tells you John Doe broke into his neighbors home and stole the jewels is likewise protected.
Journalists, by contrast, enjoy only qualified privilege.
This means that, provided we accurately report something said by a public official in his or her official capacity, or quote accurately from a public record, we enjoy strong protection from legal liability. Where this most often comes into play at media outlets, of course, is in reporting about cops and courts.
Were on solid ground here as long as were quoting a police officer -- doesnt necessarily have to be the chief or PIO -- or a prosecutor or a judge when reporting on arrests or on the resulting court cases. The same is true if were quoting from a blotter or police report or a court document such as a probable cause affidavit, an indictment or information, or a pre- or post-sentencing report. We can also use what is said on the witness stand in open court, provided we accurately quote it.
The key word in all the above, of course, is accurately. Lets say, however, that something we publish turns out to be wrong. Maybe we misunderstood something said at a press conference or on the witness stand. Or maybe we mix up John Does criminal record with John Dows. Or maybe we posted that the mayor had been charged with drunken driving before the PIO called back to say he was charged only with reckless driving.
In such cases, the key question becomes, What is the status of the person claiming to have been libeled?
The law on this question is constantly evolving, but it is good to be familiar with at least a few important court rulings over the last several decades.
The first is New York Times vs. Sullivan, a landmark U.S. Supreme Court Case from 1964, which set a very high bar for those seeking damages for libel. It said a public official cannot collect damages without showing that erroneous reporting on the performance of his or her official duties showed actual malice, which means knowing that something published was false, or showing reckless disregard of whether it was true or not.
A 1967 case, Associated Press vs. Walker, applied that principle to public figures, which means people of prominence in public affairs, who are not public officials but are nevertheless powerful and influential. Examples might include Mark Zuckerberg or Kanye West.
But a 1974 case, Gertz vs. Welch, narrowed the definition of what constitutes a public figure. Under this and later rulings, a person might be well known in some circles -- Gertz was a prominent local lawyer -- without seeking to influence or take part in public affairs, and is therefore not a public figure. In subsequent cases, state courts have lowered the standard of proof from actual malice to mere negligence when someone other than a public figure is involved.
Finally, there is a case of Time v. Firestone, where the court further narrowed the definition of a public figure, in this case ruling that a Palm Beach socialite who held press conferences during her divorce trial had not injected herself into public affairs, and so was what came to be called a private figure./p>
The implication of all these cases, beginning with the Sullivan case, is that the mindset of the journalists involved could make all the difference in the outcome of a libel suit.
If someone trying to prove that you acted with actual malice finds a witness willing to testify that they heard you say, Im going to get that guy, whatever it takes, you are going to be in trouble. Or if you are forced to admit to a jury that you relied on a neighbors claim that John Doe had been convicted once of DUI, when a simple records check would have shown the charge was bargained down to reckless driving, you might be judged negligent.
The question you should always ask yourself is, How would this look to a jury? knowing that juries tend more often side with powerless John Q. Citizen than with a deep-pocketed Mainstream Media Giant.
DOS AND DONTS
Its important to add a word here about the words alleged or allegedly. Contrary to popular belief, these words are NOT some sort of magical shield against libel. You can fill a story with alleged and allegedly and still be liable for damages if you lack qualified privilege as described above.
Instead of using alleged or variations thereof, cite your source:
- John Doe murdered his wife, police said.
- Prosecutors said John Doe has a long history of spousal abuse.
- John Doe has six previous DUI convictions, court records show.
- I saw him shoot my brother, John Doe told the court.
Two final points:
- It is a good idea to know something about the law regarding libel in editorials, book and movie reviews and other forms of written opinion. Work of this sort is typically known as fair comment and criticism, and there is considerable scope given to the expression of even the strongest opinions. If a review says a movie is one of the worst in the history of film or that the restaurants most expensive steak was as tough as shoe leather, the writer is probably safe. But if there is a whiff of malice an actor is the ugliest person on two feet or of negligence the review or editorial contains easily refutable misstatements of fact it is at least possible a libel suit could succeed.
- The question often arises: Are we liable for libelous comments made below our stories or on our Facebook pages? The short answer is no. Federal law and court decisions have generally ruled that providing a forum for commentary is not the same as publishing it for purposes of libel law.