TYPES OF LIBEL
LEARNING OBJECTIVE: Identify the different types of libel.
There are two kinds of libel - obvious libel and libel by inference (hidden libel), refereed to in law as libel per se and libel per quod, respectively. Do not let yourself become confused by the Latin terms.
LIBEL PER SE
The more obvious of the two, libel per se, means "by itself" or "on the face of it." The reader or viewer does not have to interpret or study in order to understand the libel per se because it is obvious or evident. Libel per se is the more serious of the two types, and persons libeled in this manner do not have to prove that they suffered damage to their reputations, monetary loss or other injury. Libel per se can support a lawsuit in itself.
There are probably thousands of words, phrases and statements in the English language that are libelous in themselves. Some of them are of a political nature, others refer to race or religion and still others involve specific professions and occupations. Others (and this is no doubt the largest group) affect the honesty, integrity or morals of anyone to whom they are applied.
Here are just a few examples of words and phrases you should not use in reference to individuals or groups:
1 Professionals. Attorney: shyster, ambulance chaser, crafty, unprincipled, and slick Business person: swindler, racketeer, double-dealer, cheat, and phony. Politician: liar, grafter, perjurer, seller of influence, pocketer of public finds, and criminal's partner. Doctor: quack abortionist, faker, and incompetent. Also, never use such words as crooked and criminal to descibe people or their behavior.
l Affiliations. Red, Communist, Nazi, a member of the Ku Klux Klan, atheist, nudist and socialist (sometimes).
l Honesty and Morals. Unreliable, a credit risk, hypocrite, adulterer, unchaste, prostitute, drunkard, conspirator, mistress and thief.
Obviously, there can be many more classifications of words and phrases that are libelous in themselves. For example, a word like "drunkard" can have numerous synonyms, all just as libelous, and the same thing applies to most of the nouns and adjectives in the preceding list.
Another point worth considering is that the meanings of words and phrases can and do change. Over a period of years the meaning of a word or phrase can shift gradually until it is no longer libelous in itself or libelous at all. The reverse also is true. A word or phrase harmless a few years ago maybe libelous in itself today.
A word that has almost entirely lost a previous libelous per se meaning is "alcoholic." A few years ago the word was synonymous with "drunkard," but today ir refers to an illness - alcoholism. Words of this type, however, should still be used with caution.
As for a word's meaning changing from a safe description to a libelous one, do you remember when "gay" meant happy and carefree?
In a libel suit, if the defamatory material is libelous in itself, the court decides on the interpretation of the words and phrases involved; the news medium does not. If the court decides the material can be understood as libelous by the public, the publisher involved has no argument.
LIBEL PER QUOD
The second type of libel is committed by inference and is more "hidden." Its legal term, libel per quod, means "because of circumstance" or "by means of circumstance." In libel per quod, the statements, words or phrases involved maybe harmless in themselves, but become libelous because of attached circumstances. Usually, such circumstances are unforeseen by the publisher, who can claim that the questionable material was published in good faith and without malice. However, good faith is not a complete defense.
Here is a classic example of libel by circumstance: A news story reported an athlete's spectacular feats on the tennis court the previous Saturday. In fact, the tennis match was on Friday, not Saturday; a simple error. However, the story was libelous per quod because the athlete in question belonged to a religion that observes Saturday as the Sabbath - a day of quiet and meditation. The story, as it was printed, defamed the athlete as not being a devout member of his church.
Libel per quod is the most common of all libels. Very few publishers intentionally undertake the risk involved in printing material that is obviously libelous. However, libel per quod often occurs because of errors or negligence. There are countless other examples of libel by circumstances - wrong names, wrong addresses, and so forth.
Libel by circumstances also may result from what the reader may infer. In a story appearing in a national magazine, a man was described as being a legislative representative (lobbyist) for the Communist Party. The man charged in a suit that this statement damaged his reputation because it implied he was a communist sympathizer. Whether the man was, or was not, a communist sympathizer or a lobbyist for the party was beside the point. The man claimed he had been defamed, and his claim was upheld by a federal appeals court.
"Guilt by association" also is a form of libel per quod This form of libel, sad to say, has been employed for many years by unscrupulous politicians and others seeking positions of power.
Perhaps the most obvious use of this method has been the linking of various persons to the Communist Party by innuendo. During a political campaign in the west several years ago, pamphlets appeared describing a U.S. senator who was running for re-election, as being friendly toward communist aims. One of the principal items of evidence given to support this claim was the fact that the senator had participated in a pre-World War II meeting during which Russia and Stalin were praised as foes of Nazi Germany. The pamphlets were clearly an example of circumstantial libel - what the reader might infer. The intent of the writers of the pamphlet was apparently to damage the senator's reputation in order to injure his election prospects.