Intro to Libel Law

Question 1

Elements of Libel

Answer 1

• Defamation
• Identification
• Publication

Question 2

Defamation

Answer 2

• Communication that is damaging to reputation
• More than merely unflattering or annoying
• Defamatory if “significant segment of average and reasonable people in community” would interpret it as such.

Question 3

Defamation Per se (facially obvious)

Answer 3

• criminal behaviour
• unethical practice
• loathsome disease
• sexual misconduct

Question 4

Defamation per quod

Answer 4

• facially innocuous but defamatory because of extrinsic facts

Question 5

Identification

Answer 5

• Name is not required, but at least one person must be able to ID
• Beware of groups fewer than 25
• Groups/organizations/businesses may sue
• Government cannot sue
• Survivors cannot sue over defamation of the deceased
• Product disparagement/trade libel is also a category of cases

Question 6

Misidentification

Answer 6

• Journalists can get somebody’s name wrong

- Broadcasters must be particularly careful because of the juxtaposition of voice and video.

Question 7

Publication

Answer 7

• At least one party other than the victim amd the speaker or writer must hear/read it.
• can occur in a variety of contexts

Question 8

Damages

Answer 8

• Compensatory:
  > Actual loss of good name, humiliation, stress, etc.
  > Special: actual monetary loss
• Punitive
• Presumed: assumed without proof, but no longer easy to obtain.

Question 9

Who can be sued?

Answer 9

Anyone in the chain of production and dissemination of the libel, including the source, journalist, editor, publisher/owner, ad agency or ad client.

Question 10

Who cannot be sued?

Answer 10

• ISPs (Internet Service Providers)

- Websites that publish info by third parties

Question 11

Libel litigation procedure

Answer 11

• Alleged libel occurs
• Suit filed
• Dismissal sought (case over if granted)
• Discovery
• Summary judgement sought
• Trial (if summary judgement denied)

Question 12

Plaintiff burden of proof

Answer 12

• defamation
• identification
• publication
• and falsity and fault in most cases

Question 13

Defendant burden of proof

Answer 13

• establish the elements of any common law or statutory defense claimed.
• If the First Amendment is the defense, the plaintiff must prove very little.