Legal Communication – Nicola Sarjeant
Defamation – notes
Ø What if the plaintiff already has a bad reputation? Should he/she be able to sue for defamation?
- bad reputation could mitigate damages
- if reputation cannot be further damaged, a defamation suit serves no purpose – needs to relate the same/similar matter on which the bad reputation was founded
e.g. – Defendant says Tiger Woods had another affair (in addition to the ones he has admitted to) – this may not damage his reputation any further, and therefore he couldn’t sue
However, if the defendant states that Tiger Woods used to abuse his wife, this could be further damage to his reputation, and he could sue (assuming it was false)
Some plaintiff’s reputations are irreparably stained (in all matters) e.g. Adolf Hitler – the “libel-proof” plaintiff – can’t sue for any defamatory statements
What are defences to accusations of defamation?
1. Truth – an absolute defence (to tort of defamation)
- but, if it’s public disclosure of private facts, the plaintiff could sue for invasion of privacy or intentional infliction of emotional distress (both torts)
4. Opinion (can’t be ‘true’ or ‘false’ – therefore can’t prove third element of defamation)
the statement cannot be reasonably interpreted as intended to convey actual facts about a person – would you reasonably believe it’s true (a fact)?
e.g. restaurant or movie reviews
- humor, satire, fiction, parody
Burden of proof
Ø Who should have the burden of proof (the obligation to prove/disprove a fact) – the plaintiff who alleges he/she was defamed, or the defendant who allegedly defamed the plaintiff?
In the United States, the plaintiff has the burden of proof.
- Public figure – show actual malice, with “clear and convincing evidence” (high level of proof)
- Private figure – show breach of duty of care, on the “balance of probabilities” or “preponderance of the evidence” (lower level of proof)
Publisher vs. Distributor
Ø Do you think there is any difference in how a publisher and distributor (e.g. bookstore, library) would be treated in libel cases?
Publisher: - parties that created the defamatory content (author, editor) fully liable, as well as publishers, are liable (even if not aware of libellous content)
Distributor: only if the plaintiff can prove the distributor was aware of the defamatory content
Ø What do you think should happen with Internet Service Providers (ISPs) – should they be held liable for defamatory content that is posted by people who use their services?
Cubby v. Compuserve (1991) – precedent – applied defamation law (originally meant for hard copies of written works) to the Internet; defendant (Compuserve) not liable – although it hosted defamatory content on its boards, it was a distributor not a publisher - didn’t know what was on its forums (and made no attempt to)
Stratton Oakmont v. Prodigy Services (1995) – defendant (Prodigy) liable as a publisher of content created by its users because it exercised ‘editorial control’ over messages on its bulletin boards (1. posted Content Guidelines; 2. enforced those guidelines with ‘Board Leaders’; 3. used screening software designed to remove offensive language)
à discouraged all websites from screening for user content due to potential liability
à Congress effectively overturned this decision with: US Communications Decency Act (1996) - §230(c)(1) - No provider or user of an interactive computer service shall be treated as a publisher or user of any information provided by another information content provider.
The following three cases were all considered by the US Supreme Court. What do you think the court decided in each case?
Hustler Magazine v. Falwell, (485 U.S. 46) (1988)
Jerry Falwell(August 11, 1933 – May 15, 2007) was a famousAmericanevangelical Christianpastor,televangelist, and a conservativecommentator. Falwell founded theMoral Majority, which became one of the largest political lobby groups for evangelical Christians and “family values” in the United States during the 1980s.
In November 1983, the pornographicmagazineHustlercarried aparody advertisementof aCampariad, featuring a fake interview with Falwell in which he admits that his "first time" (to have sex) waswith his mother in anouthouse [outside toilet]whiledrunk. The ad carried a disclaimer insmall printat the bottom of the page, reading "ad parody—not to be taken seriously." The magazine's table of contents also listed the ad as "Fiction; Ad and Personality Parody."
Falwell sued for $45 million in compensation alleging invasion of privacy,libel, and intentional infliction ofemotional distress.
US Supreme Court: 8-0 decision in favour of Hustler
- so obviously ridiculous that it was clearly not true – could not reasonably be understood as describing facts
- parody did not make false statements implied to be true, therefore not subject of damage under ‘actual malice’ standard
- First Amendment free speech guarantee – prohibits damages for emotional distress to public figures unless actual malice
CBS Inc. v. Brown & Williamson Tobacco Corp., No. 87-1354 (1988)
In 1981, a CBS TV broadcast said that the Brown & Williamson Tobacco company's advertising strategy for its Viceroy brand had been to attract young people by relating cigarettes to ''pot[1], wine, beer and sex.'' Walter Jacobson, the anchor and commentator for WBBM-TV, the CBS-owned station in Chicago, said the idea was to present cigarette smoking as ''an initiation into the adult world'' and ''an illicit pleasure.''
The court heard evidence that Mr. Jacobson and his researcher had been unable to find any ''pot, wine, beer and sex ads'' by Viceroy and that the researcher, Michael Radutzky, had destroyed ''critical documents'' that might have helped the tobacco company prove its case after the suit had been filed. The defendants (CBS) argued that such a large award of damages, in a case in which no monetary injury had been proved, violated the First Amendment.
Appeal Court decision in favour of B&W upheld by the US Supreme Court.
- B&W had proved by “clear and convincing evidence” that CBS either knew it was false or had serious doubts about its truth
- CBS had to pay $1m in “presumed damages” for harm to B&W’s reputation and $2m in punitive damages; Jacobsen (CBS reporter) had to pay $50,000 in punitive damages
Church of Scientology International v. Time Warner Inc., 00-1683. (2001)
In 1991, Time magazine ran an award-winning article portraying the Church of Scientology as a greedy cult. Scientology, founded by science-fiction writer L. Ron Hubbard, requires members to take classes and counselling that can cost thousands of dollars. The article, entitled, ``Scientology: The Cult of Greed,'' said that the so-called religion is ``really a ruthless global scam[2].'' The church contended that the writer was biased and only interviewed critics and that the story had multiple defamatory comments. Time Warner Inc. consistently defended the 10-page article and said it refused to be “intimidated by the church's apparently limitless legal resources.” It also noted that the article had received several prestigious journalism awards.
US Court of Appeals, 2nd Circuit – no intent of malice
US Supreme Court refused to reconsider
[1] pot – slang for marijuana
[2] scam – an illegal plan for making money