The Libel Perils of Publishing a Print and/or Online Newspaper Tom - - PowerPoint PPT Presentation

The Libel Perils of Publishing a Print and/or Online Newspaper

Tom Cronin October 4, 2019

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Tom Cronin Partner - Gordon Rees Scully Mansukhani LLP Chicago

Presenter

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TOPICAL OVERVIEW

Defamation and Libel Generally Liability for Newspaper Libel Seminal Cases Famous Cases Defenses How to Avoid Libel: Best Practices Questions (Time Permitting)

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Defamation and Libel Generally

In Illinois and most jurisdictions, the distinction at common law between spoken and written defamation (slander and libel) has been abandoned, and courts now treat them the same. Bryson v. News Am. Publications, Inc., 174 Ill. 2d 77, 89 (1996)

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Defamation and Libel Generally

Illinois elements:

1.

Defendant made a false statement about the plaintiff

2.

Defendant made an unprivileged publication of that statement to a third party

3.

The publication caused damages (unless the statement amounts to defamation per se) See Rupcich v. United Food & Commercial Workers Int'l Union Local 881, 69 F. Supp. 3d 889 (N.D. Ill. 2014); Krasinski v. United Parcel Service, Inc., 124 Ill. 2d 483 (1988).

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Statute of limitations: One year (735 ILCS 5/13-201) Wisconsin elements:

1.

A false statement

2.

The statement is communicated to a third person

3.

The statement tends to harm the reputation of the subject to lower that person in the estimation of the community or deters others from associating or dealing with them. See Rumpel v. Bank of Buffalo, 1992 WL 50176 (Wis. Ct. App. Jan. 22, 1992).

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Statute of limitations: Two years (Wis. Stat. § 893.57; see also Ladd v. Uecker, 780 N.W.2d 216 (Wis. 2010))

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Defamation and Libel Generally

Defamation per se vs. Defamation per quod

• Defamation per se

– Proving damages not necessary. – “its harm is obvious and apparent on its face.” » Solaia Tech., LLC v. Specialty Publ'g Co., 221 Ill.2d 558

(2006).

– In Illinois, words are defamatory per se if they impute:

• 1. a person has committed a crime
• 2. a person is infected with a loathsome communicable disease
• 3. a person is unable to perform or lacks integrity in performing their

employment duties

• 4. a person lack ability or otherwise prejudices that person in their

profession

• 5. a person has engaged in adultery or fornication.

Van Horne v. Muller, 185 Ill.2d 299 (1998)

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Defamation and Libel Generally

Defamation per se vs. Defamation per quod

• Defamation per quod

– Everything else – Plaintiff must prove that she sustained special damages » Emotional distress » Harm to reputation » Humiliation » Embarrassment » Economic damages (loss of income/business)

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Defamation and Libel Generally

Slander Statutes Illinois Slander and Libel Act (740 ILCS 145/1) “If any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.”

Elements of Newspaper Libel

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Liability for Newspaper Libel

Elements

• 1. False and defamatory statement
• 2. An unprivileged publication to a third

party

• 3. Fault or at least negligence on the part
• f the publisher
• 4. Actionability of the statement

irrespective of special harm or the existence of special harm caused by the publication.

Restatement (Second) of Torts § 558 Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005), cert. denied, 126 S. Ct. 1619 (U.S. 2006)

• 1. False and Defamatory Statement
• The truthfulness of a statement generally precludes a libel action.
• Defamatory statement
• Per se or per quod standards apply

Harrison v. Chicago Sun-Times, Inc., 341 Ill. App. 3d 555 (1st Dist. 2003) The statement on a newspaper’s front page that the mother had kidnapped her daughter was found to be substantially true because the mother had been found liable for child abduction by a federal district court. Thus, the mother’s lawsuit against the newspaper was not valid.

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• 2. Unprivileged Publication to a Third Party
• Qualified privilege of “fair report”

– The publication of defamatory matter in a report of an official action or

proceeding, OR

– The publication of a meeting open to the public that deals with a

matter of public concern.

– The publication must be accurate and complete or a fair abridgement

• f the occurrence reported.
• If deemed a “fair report,” then it is privileged, and libel action is not

valid. See Restatement (Second) of Torts § 611; Harrison v. Chicago Sun- Times, Inc., 341 Ill. App. 3d 555 (1st Dist. 2003)

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• 3. At Least Negligence
• The plaintiff is not required to prove that the publication was intentional.

Showing that the statement was negligently made is sufficient. This element may be proven if the defamer knew or should have known that another person would hear or read the communication (Restatement (Second) of Torts, §577, illus. 6).

• BUT…level of fault depends on the status of the plaintiff.

– Public Figures and Officials: Must prove actual malice (knowing

that the allegation was false or recklessly disregarding whether it was

• false. See New York Times Co. v. Sullivan)

– Private individuals: Negligence is usually sufficient.

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• 4. Actionability
• The statement must be “of and concerning” the plaintiff.

– Reasonable person would understand that the statement is referring

to him or her.

• If Defamation per se – actual damages not required.
• If Defamation per quod – must plead and prove damages.
• Libel-Proof Plaintiff Rule

– Some jurisdictions recognize that when a plaintiff’s reputation for a

particular trait is sufficiently bad, it cannot be further damaged as to that trait by the alleged libelous publication.

– See Lamb v. Rizzo, 391 F.3d 1133(10th Cir. 2004) (applying Kansas

law; Armistead v. Minor, 815 So. 2d 1189 (Miss. 2002); Davis v. The Tennessean, 83 S.W.3d 125 (Tenn. Ct. App. 2001).

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SO…

Are any of these headlines defamatory???

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Seminal Cases

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Seminal Cases

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) Holding: Newspapers and other publications cannot be held liable for libel to public officials unless a plaintiff can prove “actual malice.”

The Court defined “actual malice” as: “with knowledge that [the statements] are false or in reckless disregard of their truth or falsity.” This standard provides a free speech safeguard for news publications when the conduct of public officials is involved, but does not extend to nonpublic persons. The Court reached the same rule in Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967) as applied to public figures.

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Seminal Cases

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) Proving actual malice is not necessary to prove defamation of a private person; negligence is sufficient.

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Seminal Cases

Time, Inc. v. Hill, 385 U.S. 374 (1967) Proof of knowledge or reckless disregard of a statement’s falsity is required “to redress false reports

• f matters of public interest.”

The Court extended actual malice standard to the tort

• f false light (publishing something highly offensive or

embarrassing).

Famous Newspaper Libel Examples

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Famous Cases

Katie Holmes v. American Media, Inc. (Star Magazine)

U.S. District Court for the Central District of California March 2011

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Famous Cases

Katie Holmes v. American Media, Inc. (Star Magazine)

U.S. District Court for the Central District of California March 2011

• Claim for libel per se.
• The complaint alleged that:

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“the average reader [would] understand the pronouncements on Star Magazine’s cover to mean that plaintiff has become shockingly addicted to drugs…”

– “The statements on American Media’s magazine cover were totally and

unequivocally false and defamatory.”

– The actual story in the magazine was about Holmes’ use of an “e-meter,”

which is used in counseling sessions at the Church of Scientology and could cause a person to feel euphoric.

• Holmes asked for more than $50 million and punitive damages.

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Famous Cases

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Famous Cases

Tom Cruise v. Bauer Publishing Company

U.S. District Court for the Central District of California October 2012

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Famous Cases

Tom Cruise v. Bauer Publishing Company

U.S. District Court for the Central District of California October 2012

• Claim for Libel per se and Invasion of Privacy/False Light.
• The publication came shortly after Tom Cruise and Katie Holmes divorced.
• The complaint alleged that:

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“Any such reader, upon seeing the assertion, would understand this statement’s plain meaning: that plaintiff has cut off all ties with his daughter, has completely and permanently abdicated his parental responsibilities, and no longer wants Suri to be part of his life.”

– The assertions that Cruise abandoned his child are false. – The statements were published “with knowledge of their falsity and/or in

reckless disregard of the truth.”

– Defendants portrayed Cruise in a false light by publishing knowingly false

allegations.

• Cruise asked for more than $50 million and punitive damages.

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Famous Cases

Tom Cruise v. Bauer Publishing Company

U.S. District Court for the Central District of California October 2012

Defenses

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The Strongest Defense…

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Defense: Substantial Truth

The “substantial truth” of the allegedly defamatory statements is an absolute defense to a defamation claim under Illinois law. Wynne v. Loyola Univ. of Chi., 318 Ill. App. 3d 443 (1st Dist. 2000). “While determining ‘substantial truth’ is normally a question for the jury, the question is one of law where no reasonable jury could find that substantial truth had not been established.” J. Maki Const. Co. v. Chi. Reg'l Council of Carpenters, 379 Ill. App. 3d 189 (2d Dist. 2008). “Substantial truth refers to the fact that a defendant need prove the truth

• f only the ‘gist’ or ‘sting’ of the statement.” American Int'l Hosp. v. Chi.

Tribune Co., 136 Ill. App. 3d 1019 (1st Dist. 1985). See also Curtis Pub. Co. v. Butts, 388 U.S. 130 (1967)

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Defense: Absence of Malice

• Applicable only in cases involving public figures or officers.
• Private individuals do not have to prove malice.
• Reckless disregard for the truth or falsity of the statements.

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Other Affirmative Defenses

• Privileged Communication

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Reports from an official forum like a court proceeding, Congressional hearing, or local government body. It does not matter if the statement is true or false, all the defendant has to prove is that it has made an accurate report of the statement made in an official proceeding.

• Neutral Reportage

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Applies to a newspaper that accurately reports the statements of a generally responsible party about a public figure, like the statements of another news source.

• Fair Comment

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Defense asserting that the plaintiff perceived or interpreted the defendant’s words incorrectly, like confusing fact with opinion.

• Consent
• Self-Defense

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Rare; where the defendant writes something in response to something defamatory that was written about it.

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Other Affirmative Defenses

• Innocent Construction

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When statements could be reasonably viewed as non-defamatory. This has come up where an article mentions an investigation of a person, and sets forth possible avenues or results that the investigation could reach.

• Opinion

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Opinions are not defamatory, facts are. In distinguishing between facts and opinion as part of defamation action, the factors the court must consider are: (1) whether the specific language has a precise meaning that is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether the context in which the statement appears signals to readers that the statement is likely to be

• pinion, not fact.
• Rhetorical Hyperbole

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Statements characterizing a company as a "sweatshop," a "plague," and an "infestation," and company

• wner as "bloodsucking, plantation-minded boss" were non-actionable opinion, and "rhetorical

hyperbole" typical of labor disputes and protected under Labor Management Relations Act.

• Parody

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When a statement could be reasonably understood to be intended as humor or a joke. The Onion is a great example of this.

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• Statements about the Dead

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In many jurisdictions, it is impossible to libel a dead person. Even if the lawsuit was already filed, if the plaintiff dies, so does the lawsuit.

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Constitutional Considerations: Freedom of Speech/Press

“The guarantees of freedom of speech and press were not designed to prevent ‘the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential.’ Our touchstones are that acceptable limitations must neither affect ‘the impartial distribution of news’ and ideas, nor because of their history

• r impact constitute a special burden on the press, nor deprive our

free society of the stimulating benefit of varied ideas because their purveyors fear physical or economic retribution solely because of what they choose to think and publish.”

Curtis Pub. Co. v. Butts, 388 U.S. 130, 151 (1967)

How to Avoid Libel: Best Practices

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Avoiding Libel

• Know who you are writing about

– Private individual or public figure? » Different standards

• Know all contemporaneous facts to avoid false

statements

• Know the defamation per se and per quod standards

in your jurisdiction

• Document or memorialize your interview efforts

internally (in order to substantiate diligence and to avoid he said-she said)

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Offices in All 50 States

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Awards & Recognitions

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