What You Must Know About Libel

What is Libel?

Libel is a common law tort, governed by state law, in which an individual makes a written "publication" of a defamatory statement of and concerning the plaintiff that damages the reputation of the plaintiff.

What are the elements of a cause of action for libel?

The elements of a libel suit are:

1. A defamatory statement;

2. Published to a third party;

3. Which the speaker knew or should have known was false;

4. That causes injury to the subject of the communication

WHAT IS A "PUBLICATION"

The legal term for publication; when discussing a libel action, is the purposeful communication of information to a third party. The only criterion is that it is communicated to a third party.

DOES THE PUBLISHER NEED TO KNOW THE FALSITY OF THE STATMENT?

No, for an action in libel to be upheld, the publisher of a defamatory statement need not know that a statement is false or defamatory. The law concerns the intent of the publisher in communicating a defamatory statement and is not concerned with the knowledge of the publisher. The law states that a publisher "knew or should have known" that the statement was false. Therefore, if an individual publishes a libelous statement about someone; for example, that they have used drugs, while under the impression that the statement is representative of a positive characteristic, the publisher will be liable for libel if that statement causes harm to the subjects character or reputation. This is because the publisher should have known that the communication was defamatory.

However, if the individual were to publish a statement that would not normally be considered defamatory; that the individual drives a station wagon for example, and unbeknownst to the publisher, the individual finds the idea of driving a station wagon insulting, there is an argument to be made that the publisher could not have known that his/her statement was defamatory and therefore not actionable as libel.

DOES THE PUBLISHER HAVE TO INTENTIONALLY "PUBLISH" THE COMMUNICATION?

Yes, the law concerning libel requires at least a negligence standard for publication. The publisher must communicate the information with the intent to have it read by a third party. If an individual publishes a defamatory statement when he/she reasonably believes that no one is going to read it and the statement is overheard by a third party then it is not defamation.

The same applies to communications with the subject of libel. If an individual makes a defamatory statement about an individual but the defamed individual is the only one the statement was communicated to then it is not actionable. The law requires publication to a third party.

Are there defenses to a claim of defamation?

There are 6 recognized defenses to a defamation suit. These include:

· Truth – the truth of a statement is a complete defense to any libel claim. For example, if an individual publishes a statement stating that smoking tobacco can lead to emphysema a tobacco company may not sue on a defamation claim because the statement is true.

· Opinion – if a person makes a publication under the color of an opinion it may be deemed un-actionable. The law regarding opinion is not black and white. Opinion statements can be actionable if the public who the statement was published to would believe that the publisher is a credible source and his statement should be taken as truth. For example; if an individual's states that he believes that someone is a cheater it is more likely to be taken as truth if the statement is made by the individual's teacher rather than if the statement were made by an enemy of the individual.

· Privilege – If a speaker/writer has a duty to communicate to a specific person or on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.

· Consent – If a publisher has the authority, from the defamed individual, to make a statement it will be an absolute bar to a defamation action. However, the publisher may not go beyond the scope of consent.

· Innocent dissemination – this occurs when a party, unknowingly, transfers a defamatory publication. An example of this would be when a postal worker delivers a sealed envelope with to a third party that contains defamatory statements about someone.

· Poor reputation – Although this is not a complete defense to defamation, the defendant can mitigate damages by proving that the defamed individual had a bad reputation for the character trait at issue. For example, if defendant published a statement that the plaintiff was a cheater, the fact that the plaintiff had been caught cheating in the past would go to the plaintiff's bad character for that trait and may mitigate damages.

Defamation per se

Libel per se means "libel on its face." These are false statements that are inherently harmful to one's reputation and character that they do not need to be proven. Most states in the Union recognize some form of libel per se. The common examples of libel per se include: statements that injure another's reputation in his trade, business or profession; statements claiming someone has a "loathsome disease"; statements claiming that a person is "unchaste"; and allegations that an individual has been involved in criminal activity.

Seditious Libel

Seditious libel was a criminal offense in England. The law made it a crime, punishable by death to "criticize public persons, the government, or the King." The law was adopted in England in 1606 and, even though not enforced in modern times, wasn't abolished until 2006.

The most famous case involving seditious libel involved the arrest of John Zenger in 1734 after his newspaper publicly criticized the colonial governor of New York.

The United States also had its version of seditious libel that was incorporated in the Alien & Sedition Acts of 1798. The act, which was law from 1798 until 1803 made it a criminal offense, subject to penalties of fines and imprisonment "to oppose the execution of federal laws; to prevent a federal officer from performing his or her duties; to aid any insurrection, riot, unlawful assembly or combination"; or to make any defamatory statement about the federal government or the president."

Veggie Libel Law

Food Label Laws, commonly known as Veggie Libel laws, vary significantly from state to state, but veggie libel laws typically allow manufacturer or processor to sue a person/group who makes disparaging comments about their food products. In a veggie libel action the plaintiff must prove that the defendant is deliberately and knowingly spreading false information.

The most famous situation involving this was a suit initiated by a cattle rancher in Texas who claimed that Oprah Winfrey's public disparagement of beef in the context of the mad cow scare caused financial harm to his business and sued for $12 million. In order to win the case the plaintiff had to prove that Winfrey knowingly and deliberately spread the false information with malice.

Libel Lawsuits

The most famous case involving libel is New York Times v. Sullivan. In that case the Supreme Court ruled against a public figure who claimed to be defamed. The Court held that to prohibit the criticism of public officials in their duties would have a "chilling effect" on free speech.

Another important case was that of Gertz v. Welsh. In that case the Supreme Court distinguished the protections against defamation associated with a public figure and a private person. According to the Supreme Court a private person "is more vulnerable to injury, and the state interest in protecting them is correspondingly greater" than a public figure who has access to the media and a "more realistic opportunity to counteract false statement than private individuals normally enjoy." For this reason the Supreme Court held that, unlike public officials, private persons do not need to prove "malice," only the knowing or reckless dissemination of false statements.

Filing a Libel Claim

In making a prima facie case for libel first, the plaintiff needs to prove that the statement was false. This can be difficult to prove, especially if evidence has disappeared. For some claims that fall within "libel per se" these are easier to prove. The accusation that one is a criminal can be easily proven false by submitting a lack of a criminal record.

Second, a plaintiff needs to prove that the statement was published by the defendant. Libel cases are easier to prove than slander cases. A perfect example is when a newspaper makes libelous statements. There is a printed copy of the statement, with the authors name usually right under it. Slander, however, does not create the same tangible evidence.

In order to receive damages the plaintiff must only prove some type of damage. This damage can be either emotional or financial. Juries can award nominal damages, compensatory damages; and in some cases, often involving "malice" by a major publisher against a private person, punitive damages.