Date: Wed, 28 May 1997 09:47:13 EDT From: the legal beagle's dance macabre Subject: TECH: Libel or Not, Here I Wrote! [originally started Sun, 22 Dec 1996 23:01:55 EST...I don't even remember what the issue was, but here's the residue...] [this lacks most of my usual adornment of pointless humorous remarks, but since the topic raised its beady little eyes again some time ago... a summary of some of the points of libel and defamation. Remember, in case of actual emergency, you should break the glass of a lawyer and see what they say--i.e., get real legal advice, don't depend on my little misunderstandings.] What's Defamation? Defamation is a statement that harms the reputation of someone else. The important point is reputation: for a statement to defame, it must either lower the victim's standing in the eyes of the community, or tend to make others refrain from associating with the victim. [So if you haven't got a reputation to lose, it's going to be really hard to be defamed--maybe you can be famed, instead? how about infamed? this sounds like a job for the Fame Squad!] What's Libel? The basic points of a libel claim: 1. The writing must be made to someone else 2. It must be the type that generally affects reputation 3. And it must in fact affect reputation. [you wrote it and showed it to someone, the genre--type!-- of writing is normally understood as affecting reputations (i.e. believable, in some fashion), and it really has affected a reputation -- some one believed it and now shuns the victim...] What Isn't Libel? Defenses: 1. it's the truth 2. it's an opinion 3. absolute priviledge (husband, or as witness) 4. qualified priviledge "...the essence of it is that where there is some sort of public or community concern at stake, you can say things that are "fair criticisms." If your statement was just an opinion, then it will not be libel. So when you say "Madonna is the worst performer ever," then what you say is not actionable. It is opinion, not fact (even if it is fact for you.) This is true even if the criticism is "unfair." Unfair criticism is not defamation. That does not mean that you can change a fact into an opinion merely by qualifying it. If you say, "I think Madonna is a murderer" then that is likely a statement of fact, not opinion. Clearly, the line will be hard to draw at times, but usually not. Perhaps the best statement of the test is this: Does the statement reasonably imply some false factual claim? If it does, then it can be defamatory; if not, then it cannot. Under most state law, the writer must at least be negligent about the facts before he or she is liable. [a negligee about the facts? and just how sheer was this negligee? why didn't you put the facts in plain cotton jammies, or even a flannel nightgown...] Public Figures In New York Times v. Sullivan (1964), the Supreme Court held that public figures could not sue for defamation unless they could show that the publisher 1. knew that what it was publishing was false, or 2. unless the publisher was "reckless" about the truth of what it published. If the reporter knew the story was false, then there would be liability. Or if the reporter simply published an "anonymous tip" received on the phone without checking the story at all, then there would be liability. [look for the factual label, and check the story once or twice...when you are tearing a reputation, don't hang it all on an anonymous tip...] But if the reporter or the paper took even the most rudimentary steps to confirm the tip, then even if the story turned out to be false, neither the reporter nor the newspaper can be sued. With Actual Malice Towards None... The Supreme Court calls this the "actual malice" test, but it has nothing to do with "malice" in the ordinary sense of that term. The question is not whether you had ill will against the victim; the question is just whether you knew what you said was false, or you had been reckless about substantiating it. [of course, I don't think I've ever heard of anyone being sued for improving a reputation...imagine Perry Mason towering over the cowering witness, bellowing "How dare you make people think I'm better than I really am!"] tink