LIBEL AND THE LAW

LEARNING OBJECTIVE: Recognize the laws that apply to civil and criminal libel and the defenses against libel action.

We have pointed out that the laws of libel are state laws, unlike the U.S. Constitution or other national laws that bind all U.S. citizens. Libel laws vary from state to state with each state free to make changes in its libel code whenever it chooses. As a result, there is little uniformity among the states regarding award of damages or the nature of judgments in similar types of libel cases.

The state laws of libel are complex and can be understood thoroughly on1y by an attorney or a person trained in this field. In this section of the chapter, we only describe some of the "ground rules" that generally apply in all states.

There are two types of legal action that can result from publication of libelous material: civil action and criminal action.

CIVIL LIBEL ACTION

Civil libel action results when one person sues another in court because of alleged defamation. This defamation, again, need not be to the' individual's character or reputation. It can be to a person's business, occupation or property.

Civil libel also can be committed against a legal "person" composed of more than one individual. In this regard, a corporation, a partnership or any other association of individuals can be defamed General Motors could sue an individual for defaming its products or business practices. Also, an individual could sue General Motors. One corporation also can sue another corporation.

Individuals cannot sue the U.S. government, however, unless it consents to the suit. When people feel they have been libeled by an agency of the government, they still cannot bring suit unless the government agrees to be sued.

Civil libel suits are always between persons, whether the "person" is an individual, an association of individuals or an artificial being, such as a corporation. A sum of money is the usual compensation awarded by civil courts for damages. The amount has varied from one cent, a nominal sum to indicate vindication, to millions of dollars.

Money awarded in libel cases is intended to compensate the injured party for mental or physical suffering and for actual financial loss and to punish the individual or individuals who committed the libel.

CRIMINAL LIBEL ACTION

Criminal libel action is less common than civil libel action, but it is much more serious. Criminal libel is a crime and can be prosecuted in the courts like any other crime. In criminal libel the state 'is the accuser and the punisher. Persons convicted of criminal libel can be fined, imprisoned or both, depending on the gravity of the offense.

Any libel that tends to disturb public peace and order can be a criminal offense. For instance, if a popular public figure were to be libeled to the extent that riots resulted, the libel would be of a criminal nature. Obscene libel can be a criminal offense because it is considered to have an ill effect on public morals.

One of the most grave types of criminal libel is seditious libel - that which defames an established government, or one of its agents, in an attempt to thwart or overthrow it. Criminal libel, if directed at the U.S. government, becomes a federal offense and can result in a long prison term for the libeler. Seditious libel is rare, but it has occurred in cases when news organizations or individuals have written violent defamations of the government in their opposition to federal laws or the decrees of federal courts. Mere opposition to a court decree is not necessarily libelous (though it could be seditious). Remember, there is no libel involved until there is defamation.

DEFENSES AGAINST LIBEL ACTION

An individual, a newspaper or other news organization is not without some degree of protection when being sued for libel. In the following text, we cover some of the partial and complete defense strategies that might lessen the damages assessed against a defendant in a libel suit.

Partial Defenses

There are eight basic partial defenses against libel action, as covered in the following text.

INNOCENT MISTAKE/ACCIDENT. - The first mitigating factor to consider is innocent mistake, or accident, which appears in the libel codes of most states. Almost self-explanatory, it means that a defendant can be excused partially if it can be proved the libelous material was published unintentionally or without the publisher realizing it was defamatory. The "innocent mistake" law does not remove liability, but it may reduce it.

RETRACTION, APOLOGY OR CORREC-TION. - A retraction, apology or correction, usually printed with the same prominence as the original libelous material, will sometimes satisfy a person who claims to have been libeled. Nevertheless, the libeled party still retains the right to bring suit. Although retractions, apologies and corrections are three separate (partial) defenses, they are related and often overlap. A retraction is often accompanied by a correction when it is employed, and both, almost always, are accompanied by an apology. One disadvantage of a retraction, or apology, is that it puts the original defamatory remark before the public eye again, although hopefully, in a much nicer form.

An example to the contrary is this story about a southern editor of a few years ago: The editor was bitterly opposed by certain people in the town and did not hesitate to become quite harsh on them in print. One man insisted he had been libeled and demanded a retraction. The next issue of the paper appeared with the following line in large type:

JOHN GREEN IS NOT A BRAYING ASS

In that example the editor successfully and wittily continued his feud; but regrettably, he also compounded the original libel.

REPETITION. - The defense of repetition can be used when a newspaper uses a libelous story that has been printed elsewhere, in a wire service article for example. In a number of recent court decisions, newspapers were not held responsible for libels committed by wire services, since it was recognized that editors could not possibly check out every story received from those sources.

LACK OF MALICE. - In the lack of malice defense, punitive damages are usually not awarded if the publisher can demonstrate good faith and justifiable ends.

SELF-DEFENSE/REPLY. - A self-defense or reply defense can sometimes be successful if the publisher can show that the libel was a response to a previous attack made by the person claiming libel.

UNCONTRADICTED RUMOR. - The uncontradicted rumor defense can sometimes serve to lessen the damages that could be awarded in a libel case if the publisher can show that the libel was merely a published version of widely circulated rumors that the plaintiff had made no effort to deny.

USE OF AUTHORITY. - In employing the use of authority defense, a publisher would try to show that the libel originated from a source that could reasonably be expected to be accurate. A successful presentation of this defense, while not exonerating the publisher, could serve to lessen the damages awarded.

PRIOR BAD REPUTATION. - A prior bad reputation defense might prove useful to a publisher accused of libel if it could be shown that the plaintiff already had an unsavory standing in the community and the defamatory statement caused very little additional injury.

Keep in mind that these partial defenses are just that - partial. They may lessen punitive damages, or in some cases eliminate them, but they do not excuse the libel charge.

Complete Defenses

The seven complete defenses against libel charges can absolve the publisher of all liabilities if successfully used. Incidentally, it is important for you to note that in libel cases, unlike other cases tried in our country's judicial system, the burden of proof is on the accused, not on the plaintiff or the prosecution.

TRUTH. - Truth is the best complete defense against libel action. Some state laws read that truth alone will suffice as a defense in a civil libel suit; others maintain that the truth must be "without malice." In either case, the facts published must be provably true.

If the law requires "truth without malice," the defendant also must prove good intentions. Malice, however, as judged by the courts today, does not mean only "intent to harm." The consensus appears to be that "truth without malice" must be "truth for a good reason." The good reason is usually judged by determining if the material presented is in the best interest or concern of the public.

For example, a newspaper prints a story about a man running for a high public office and states that the candidate has served a prison term for embezzlement. The statement is true, and the newspaper's reason for printing it is the belief in the public's right to know, or the "public good." The candidate's history, in this instance, would give reasonable doubt of his qualifications for public office.

If, however, the same statement had been made about a private citizen who was in no way connected with the public welfare, there would have been no "good reason" for publishing that information.