Defamation/Libel

Definition: The publication or broadcast of something that

injures a person’s reputation or lowers someone’s esteem in the community…

and is FALSE.

Character vs. Reputation

• Character is part of your personality• Reputation is what other

people think of you

Important fact… In USA: PLAINTIFF BEARS

THE BURDEN OF PROOF In most other countries the

DEFENDANT BEARS THE BURDEN OF PROOF

ELEMENTS OF LIBELIn USA—these elements must be proved by the plaintiff in order to win a libel case:1.Identification2.Defamation3.Publication4.Falsehood5.Fault

ELEMENTS OF LIBEL

• IDENTIFICATION–Plaintiff must be clearly

identified–Group identification?

ELEMENTS OF LIBEL

• DEFAMATION–Must damage reputation–Must be PROVED to damage

reputation–Representative minority in the

community believes publication damaged reputation

ELEMENTS OF LIBEL

• PUBLICATIONWriter or producer of the material in question

Viewer, listener, witness (need only one)

Person who was libeled

ELEMENTS OF LIBEL

• FALSEHOOD–Must be able to be PROVEN false

ELEMENTS OF LIBEL

• FAULT FAULT (unique aspect of U.S. libel law)

Need to prove either:Actual Malice

~ or ~Negligence

ELEMENTS OF LIBEL

• FAULT FAULT (unique aspect of U.S. libel law)

Need to prove either:Actual Malice (public person)

~ or ~ Negligence (private person)

Actual MaliceActual Malice

…needs to be proven if plaintiff is PUBLIC person• knowledge of falsity• reckless disregard for the truth

NegligenceNegligence

… is proven if plaintiff is PRIVATE PERSON• failure to exercise reasonable care• reliance on untrustworthy source• not reading or misreading pertinent

documents• failure to check with obvious source• carelessness in editing

NY Times v. Sullivan US Supreme Court Case

• http://www.youtube.com/watch?v=FtqQWt7aoZ0

NY Times v. Sullivan (1964)

• Public official standard recognized

• What was happening at the time?

• Some factual errors• 35 copies in Alabama• L.B. Sullivan Police

Commissioner of Alabama• AdvertisementMontgomery County Sheriff urging civil

rights demonstrators to disperse in March 1960.  L. B. Sullivan, plaintiff in a

celebrated defamation case, stands hatless to left of horse.

Times-Sullivan Rule

• “Prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless s/he proves that the statement was made with actual malice—that is, with knowledge that it was false or with reckless disregard whether it was false or not.”

(Justices Black, Douglas and Goldberg wanted ABSOLUTE protection for speech critical of the government)

Rationale for Times/Sullivan ruling

• Longstanding tradition of robust political discussion

• Case was the same as seditious libel• Brennan “breathing space”• Government officials should expect criticism

ELEMENTS OF LIBEL

• FAULT asks…Public official?All-Purpose public figure?Limited-purpose public figure?Private Person?

Public official

• Elected• Persons who have control over government

affairs• Story related to the job and the fitness of the

plaintiff to do the job

All-purpose public figure

• Movie stars• Celebrities• Persons who occupy persuasive power

Limited-purpose public figure

• Votex-public figures (thrust oneself into the votex of an issue)

• Public controversy BEFORE libel published• Plaintiff participated in attempting to resolve

the controversy• Plaintiff was actively seeking publicity

Private person

• No public recognition• Not seeking publicity

Defamation in cyber space

• CONTENT PROVIDERS ARE DIVIDED INTO THREE CATEGORIES–Publishers (KNOW content)–Distributors (Not as aware of

content)–Common carriers or conduits (Have

NO knowledge of content)

Defamation in cyber space

–Publishers (KNOW content) • Can be held responsible

–Distributors (Not as aware of content)• Not responsible (section 230 Telecom

Act of 1996)–Common carriers or conduits (Have

NO knowledge of content)• Not responsible

DEFENSES IN LIBEL

• Proof of TRUTH--FACTS• Privileged Statements– Absolute– Qualified

• requires fairness and accuracy

• Opinion– rhetorical hyperbole--too absurd to be true– pure opinion (Ollman test)

• true/false• common meaning of the words• journalist and social context

DEFENSES IN LIBEL

• Fair comment and criticism– opinion?– legitimate public interest?– factual basis for the comment?

Common libel danger zones

• A media outlet can be held libel for reprinting or re-broadcasting comments made by others.– Remaining neutral is NOT sufficient– Obtaining denial from the subject may not be

sufficient

Defamation Law in Azerbaijan

• http://www.article19.org/pdfs/analysis/azerbaijan-defamation-osce.pdf

• Suggestions that the law should be changed…• http://en.trend.az/news/society/

1662568.html

Case studies• Super market owner Aydin Nanimanov said

yesterday he had paid MP Rovshan Illiad 10,000 manat over five years to ask a series of questions in Parliament relating to planning policy.

• Angry mother, Sabina Garafanov said yesterday her son, Ashan, eight, had to undergo an emergency operation after a school nurse blundered. She said nurse Jala had not realized Ashan’s leg had been broken when he limped off in a futbal match and sent him back to play on after bandaging his shin.

Case Study: McLibel

• http://www.mcspotlight.org/case/pretrial/factsheet.html

Case Studies

• USA Ambassador, Matthew Bryza, was see stealing a car near Sahil metro station.

• Police fraud officers are understood to be investigating a senior council officer employed at the Baku civic centre. The woman, who has not been named, is understood to work in the housing department.