Legal Communication – Nicola Sarjeant
Defamation
1. In the United States, the First Amendment to the Constitutions guarantees certain rights – what are they?
2. In society, we need to balance the rights of people to protect their reputations and the right to freedom of speech or expression.
à Which do you think is more important?
Thecommon laworigins of defamation lie in thetortsofslander(harmful statement in a temporary form, especially speech) andlibel(harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action. Defamation is the general term used where it is not necessary to distinguish between "slander" and "libel".
Defamation consists of the following:
(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.
What is defamatory?
· A statement which causes harm to reputation.
A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation."
· DefamationPer se (per se is Latin for "by itself," meaning inherently.)
Some statements are so defamatory that they are considered defamationper se;and the plaintiff does not have to prove that the statements harmed his/her reputation. These include allegations:
· "injurious to another in their trade, business, or profession"
· of a “ loathsome disease" (historicallyleprosyandsexually transmitted disease, now also includingmental illness)
· of "unchastity" (usually only in unmarried people and sometimes only in women)
· of criminal activity
The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish.
What if the plaintiff already has a bad reputation? Should he/she be able to sue for defamation?
What are defences to accusations of defamation?
1.
2. First Amendment (in the United States)
2a. Public Officials/Public Figures
2b. Matter of Public Concern/Interest
3. Privilege - in particular situations it is to the benefit of society generally for people to be able to communicate without the fear of being sued for defamation.
· This could be absolute privilege – such as in court or in legislative proceedings.
· Or it could be qualified privilege – this could include an employer's response to unemployment claims, workers' compensation claims, or a response to a request for verification of employment. The plaintiff must show actual malice and that the defendant did not have "reasonable and proper grounds" for the allegedly defamatory statement.
4.
(i) the statement addresses matters of public concern;
(ii) the statement is expressed in a manner that is neither probably true nor probably false; and
(iii) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.
Burden of proof
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 alleged defamed the plaintiff?
Publisher vs. Distributor
Do you think there is any difference in how a publisher and distributor (e.g. bookstore, library) would be treated in libel cases?
Publisher:
Distributor:
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?
US Communications Decency Act (1996) -
What about this case in the UK? Metropolitan International Schools Ltd., an online training company based in the U.K., sued Google over comments posted on Web forums accusing the training company of running a scam[1], an allegation Metropolitan International Schools denied. The Web forums didn't belong to Google, but Metropolitan International Schools sued Google for publicizing the claims through its search results.
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.
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[2], 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.
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.'' 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.
[1] scam – an illegal plan for making money
[2] Pot – slang for marijuana