Libel and Privacy

Question 1

What does tort mean?

Answer 1

It is a civil wrong and it means a plaintiff can win money

Question 2

What is libel considered?

Answer 2

A tort and in most states it can also be a crime.

Question 3

Are most professional communicators confronted with libel?

Answer 3

No

Question 4

What is defamation?

Answer 4

i. Any communication that holds a person up to contempt, ridicule, hatred or scorn

Question 5

What is libel?

Answer 5

Written defamation

Question 6

What is slander?

Answer 6

Oral defamation

Question 7

How is libel demonstrated?

Answer 7

As any false communication that holds a person up to contempt, ridicule, hatred or scorn

Question 8

What are three ways a person can demonstrate defamation?

Answer 8

• A reputation was damaged. A person’s reputation was lowered because at least a significant minority in the community thought less of the plaintiff. The group may be a minority, but it must be a representative minority. • A person was deprived of social contacts. People (acquaintances or contacts, rather than friends) no longer associate, socialize or make contact with the person. • A person was deprived of the ability to work, hold a job, or earn a living.

Question 9

Can the dead be defamed?

Answer 9

No, only the living.

Question 10

Alright, you crazy kids. What’s the path of a lawsuit?

Answer 10

a. A dispute (publication of allegedly defamatory statement) b. Pre-lawsuit efforts c. A lawsuit is filed d. The defendant is served e. The defendant responds f. Negotiations g. Depositions h. Efforts to settle i. Motions to discuss j. The trial begins and the plaintiff must produce evidence supporting the elements of the burden of proof

Question 11

Based on the rulings of the U.S. Supreme Court, that despite what a state requires, a plaintiff in a libel action must prove six elements. What are these six elements?

Answer 11

1. Publication 2. Identification 3. Defamation 4. Falsity 5. Damages 6. Fault

Question 12

In the plaintiffs burden of proof, what is publication?

Answer 12

i. Occurs when a third person sees the allegedly defamatory material 1. First, the author 2. Second, the subject 3. Third, anyone else

Question 13

In the plaintiffs burden of proof, what is identification?

Answer 13

i. The plaintiff must prove that he or she was, indeed, the subject of the defamatory material, that is, that the published material of and concerning the plaintiff. The identification can be by naming a person, but also by photography without a name, by description, by nickname, by caricature, or by a number of other ways ii. The line falls somewhere between 25 and 100 (fewer than 25, small enough group so that you can be can identified, more than 100 you probably can’t be identified)

Question 14

In the plaintiffs burden of proof, what is defamation?

Answer 14

i. Occur when the words used “taken in their ordinary sense and as they would be naturally understood” would tend to injure the reputation of a person or render that person “odious, contemptible or ridiculous”

Question 15

What is the definition of defamation specifically in Virginia?

Answer 15

a. Accusation of a crime involving moral turpitude b. Accusation of having an infectious disease c. Accusation that a person is unfit to perform the duties of his or her office or that the person lacks integrity for carrying out such duties d. Words than harm a person in his or her profession.

Question 16

What are some other danger areas of defamation?

Answer 16

ii. Other danger areas: 1. Out of the ordinary sexual conduct 2. Bizarre personal habits 3. Religion & politics 4. Charges that affect income

Question 17

In the plaintiffs burden of proof, what is falsity?

Answer 17

Must be proved when the matters involved are of public concern (need to define what matters of public concern are). Since the 1986 ruling by the Supreme Court in Philadelphia Newspaper Co. v. Hepps, libel plaintiffs have been required to prove that the allegedly defamatory material is false. That is, libel can be true, but if it is, the plaintiff cannot win a lawsuit – the plaintiff must also prove that the defamation is false

Question 18

In the plaintiffs burden of proof, what are damages?

Answer 18

A plaintiff must prove actual injury 1. Actual (compensatory) damages are awarded for anguish, mental suffering or depression. 2. Special damages (salary of years lost in work because of the defamatory statement). To prove special damages, the plaintiff must document actual loss of income or earning. And may also seek 1. Punitive damages a. Have to prove actual malice

Question 19

In the plaintiffs burden of proof, what is fault?

Answer 19

Culpability – something other than honest error 1. Negligence – carelessness; failure to exercise reasonable or ordinary care 2. Actual malice – knowledge of falsity or reckless disregard for the truth 3. Gross negligence – only in New York and fits somewhere in between these two

Question 20

What court case did actual malice come from?

Answer 20

a. Became relevant to constitutional law in the US in New York Times v. Sullivan i. March 29, 1960 1. The committee to defend MLK and the struggle for freedom in the South 2. First amendment doesn’t apply to libel

Question 21

Why is there even actual malice in the first place?

Answer 21

a. Citizens have a duty to criticize their governors b. The burden for a public official should be greater than that of a private person c. Even false statements of fact are protected to guard against self-censorship in the course of public debate

Question 22

What is actual malice?

Answer 22

Knowledge of falsity or in other words, lying… …OR… …Reckless disregard for the truth a. The recklessness must be tantamount to lying b. Like knowledge of falsity, reckless disregard is a subjective standard c. There was intent to harm through falsehood

Question 23

What is reckless disregard for the truth?

Answer 23

a. Publishing with a “high degree of awareness of probably falsity” b. Publishing though the defendant “in fact entertained serious doubts as to the truth of his publication” c. “the purposeful avoidance of the truth”

Question 24

What has the court specifically said about actual malice?

Answer 24

1. The nature of the investigation and seriousness of the charges are important 2. The need for rapid dissemination should be considered 2. Failure to investigate, standing alone, is insufficient for a finding of actual malice 3. The number and veracity of sources are important 4. Testimony alone may be insufficient to show belief in the truth

Question 25

What is negligence?

Answer 25

a. Conduct that creates an unreasonable risk of harm; conduct that would be avoided by reasonable care; failure

Question 26

What important quote came from Gertz v. Robert Welch, Inc (1974).

Answer 26

“There is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries, but on the competition of other ideas.”

Question 27

Tell me how a defendants case works.

Answer 27

a. The plaintiff rests b. Defense motion for summary judgment c. The judge: -Taking all reasonable inferences in a light most favorable to the plaintiff -Finds that a reasonable juror, could not find for the plaintiff -Under the appropriate burden of proof d. Denies the motion for summary judgment e. The defense case begins f. The statue of limitations -One year in Virginia

Question 28

What are some defense strategies?

Answer 28

a. Defeat an element of the plaintiff’s burden of proof b. Assert a complete defense c. Assert a partial defense g. Reporting defenses

Question 29

What is the defense strategy: complete defenses?

Answer 29

1.Truth = the proof must be as broad as the charge - Substantial truth is sufficient 3. Qualified privilege 4. Opinion

Question 30

In a complete defense what is a qualified privilege?

Answer 30

i. A privilege to discuss matters conducted in an absolutely privileged form ii. Legislative proceedings iii. Judicial proceedings iv. Executive proceedings v. Meetings open to the public (usually)

Question 31

What are two other related defense strategies?

Answer 31

i. Good reporting=no negligence ii. Neutral reporting

Question 32

What are five criteria that have to be met for neutral reporting?

Answer 32

a. The comments must be newsworthy and related to a public controversy b. They must be made by a responsible person or organization c. They must be about a public official or public figure d. They must be accurately reported w/opposing views e. They must be reported impartially

Question 33

Where do the qualifications for qualified privilege from from?

Answer 33

i. The report must be accurate ii. The report must be fair iii. The report must be made without common law malice

Question 34

In a complete defense what is opinion?

Answer 34

A statement that cannot be proved to be true or false

Question 35

Opinion is protected in two ways. What are those ways?

Answer 35

i. Common law privilege of fair comment and criticism ii. The constitutional protection for pure opinion

Question 36

What must happen for a comment to be considered a fair comment or criticism?

Answer 36

i. The comment must concern something of legitimate public interest ii. The facts upon which the opinion is based must be truly stated or well known iii. The opinion must be the writer’s honest opinion iv. The expression must be made without common law malice (ill will, spite, hatred).

Question 37

What is a pure opinion?

Answer 37

Don’t need extraneous facts

Question 38

What did the Harvard Law Review do in 1965?

Answer 38

Restated the second law of torts.

Question 39

What are the four kinds of invasion of privacy (four torts)?

Answer 39

1. Appropriation 2. Intrusion 3. Publication of Private Information 4. False light invasion of privacy

Question 40

In the four kinds of invasion of privacy (four torts), what is appropriation?

Answer 40

The use of the name, likeness or image of a person without permission for commercial gain

Question 41

What is appropriation specifically in Virginia?

Answer 41

Permission has to be writing, the estate of someone who has deceased can sue for appropriation But no intrusion, publication of private information, false light invasion of privacy

Question 42

In the four kinds of invasion of privacy (four torts), what is intrusion?

Answer 42

The act of physically invading a place where a person has a reasonable expectation of privacy

Question 43

In the four kinds of invasion of privacy (four torts), what is publication of private information?

Answer 43

1. There is publicity about private facts that are not of legitimate public interest and are of a highly offensive nature to a reasonable person a. There is publicity b. About private facts c. Of a highly offensive nature to a reasonable person d. That are not of a public interest

Question 44

In the four kinds of invasion of privacy (four torts), what is false light invasion of privacy?

Answer 44

1. The widespread publication of false information that is highly offensive to a reasonable person, with actual malice a. Defamation is not an element, doesn’t have to be defamatory, only has to be false

Question 45

What is intentional infliction of emotional distress?

Answer 45

i. “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress.” - Restatement (Second) of Torts (1965)

Question 46

What is the conduct that the plaintiff must prove for there to be intentional infliction of emotional distress?

Answer 46

1. Must be intentional or reckless 2. It must offend generally accepted standards of decency or morality 3. It must cause severe emotional distress 4. And for public persons, the publication must be made with actual malice

Question 47

Who presents evidence first if a libel case goes to court?

Answer 47

The plaintiff (the person who is suing)

Question 48

What is the enunciation of the burden of proof?

Answer 48

The elements a plaintiff must prove in order to win a libel action

Question 49

In Virginia, what has the state supreme court identified as the burden of proof for libel action?

Answer 49

the publication of false statements that are defamatory and are published with fault

Question 50

How does knowledge of falsity compare to reckless disregard?

Answer 50

Knowledge of falsity is easier to define than reckless disregard, but it’s probably harder to prove. The plaintiff must show that the publisher was lying – that he published a falsehood knowing at the time of publication that it was a falsehood. What the publisher may have learned subsequent to publication is irrelevant.

Question 51

How does reckless disregard compare to knowledge of falsity?

Answer 51

Reckless disregard for the truth is not as easy to define as knowledge of falsity, but it can often be easier to prove. Reckless disregard focuses on the methods used by the publisher to ensure that the material published was true. That is, it focuses on information gathering. It is more than an examination of whether the publisher did a good or bad job, however. The Supreme Court has said that reckless disregard is not an objective standard – it is a subjective standard. It is the result of an intent to harm by falsehood.

Question 52

What are the guidelines for actual malice?

Answer 52

The Court has given some general guidelines on determining the existence of actual malice: • The nature of the investigation and the seriousness of the charges are important. • The need – or absence of need – for rapid dissemination should be considered in weighing the investigatory methods and the amount of investigation. • Failure to investigate, standing alone, is insufficient evidence of actual malice, particularly if the evidence is not questionable and there are no major internal inconsistencies. • The number and veracity of sources is important. • The publisher’s rationale for choosing and rejecting certain sources and information is important. • Testimony alone is insufficient to show that the publisher believed the material in question to be true; if the belief is reasonable, however, and there is no evidence to impeach the testimony, there is no reason to believe there was publication of a knowing falsehood.

Question 53

How is negligence usually defined in libel cases?

Answer 53

In libel actions, it is usually defined in one of three ways: • failure to act as an ordinarily careful person or as a reasonably prudent person would act under the same or similar circumstances; • failure to adhere to standards of reporting and writing that are common to the news industry; • failure to have reasonable belief in the truth of material to be published, or publishing with reasonable doubt as to the truth.

Question 54

How does the Virginia Supreme Court define negligence? What makes it confusing?

Answer 54

Failure to adhere to standards of reporting and writing that are common to the news industry. What makes the Virginia definition of negligence confusing is that the Virginia high court has specifically rejected the journalistic malpractice test.

Question 55

What must public officials and public figures do about actual malice?

Answer 55

Public officials (New York Times Co. v. Sullivan) and public figures (Curtis Publishing Co. v. Butts) are required to prove actual malice in order to win their libel actions.

Question 56

Why is there a heightened burden of proof for these two types of libel plaintiffs?

Answer 56

• Both public officials and public figures are in positions of power. Therefore, they are fair targets for criticism and critics deserve extra protection. • Both public officials and public figures thrust themselves into the public eye; because of their fame or notoriety, they have greater access to the media

Question 57

What is a public official?

Answer 57

A public official is someone who works for the government in a policy-making position, or someone who appears to be in a policy-making position. It is not enough to be paid with government funds – there must be policy-making authority. A public official holds a position about which the public has an interest; any elected official is a public official, for example.

Question 58

In Gertz v. Robert Welch, Inc., the Supreme Court identified three kinds of public figures. What are these three kinds?

Answer 58

• All-purpose public figures have widespread fame or notoriety; they are household names. It is very difficult to become an all-purpose public figure. • Limited-purpose public figures thrust themselves into ongoing public controversies in an attempt to affect the outcome of those controversies. All three criteria must be met. • Involuntary public figures are very rare; they are dragged into ongoing public controversies through no efforts of their own.

Question 59

How may a defendant seek to have a case dismissed?

Answer 59

• seeking a summary judgment, asking the judge to dismiss the case; • attempting to have the case dismissed if the statute limitations has passed.

Question 60

If the case goes to trial, the defendant can attempt to defeat one of the elements of the plaintiff’s burden of proof or, failing that, advance a complete defense. What are the three elements of a complete defense?

Answer 60

• truth: that the publication is substantially true; • qualified privilege: that the publication was based on material that came from an absolutely privileged forum and that it was accurate, fair and without common law malice; • opinion: pure opinion is based on a comment that cannot be proved to be either true or false; fair comment and criticism is based on the publication of material that is a mix of facts and opinion.

Question 61

What makes privacy such a special tort?

Answer 61

Privacy is a relatively recent tort. It traces its heritage to 1890 when Samuel Warren & Louis Brandeis wrote “The Right of Privacy” for the Harvard Law Review. Years later, privacy torts were categorized and summarized by William Prosser in 1965 for the American Law Institute’s Restatement (Second) of the Law of Torts. It’s a kind of bastard tort because much of what’s there is covered elsewhere. It’s not mentioned in the Constitution, for example, but has some foundation is there – in the protection against the quartering of soldiers.

Question 62

What is the only true defense against appropriation?

Answer 62

Consent is the only true defense, but if there is no commercial gain, there is no appropriation. Publishing news is not considered a use for commercial gain, so newsworthiness can be used as a defense.

Question 63

What does intrusion have nothing to do with?

Answer 63

Intrusion has nothing to do with publication. The tort occurs with the physical act of invading, not the publication of whatever is discovered during that act. Intrusion might involve • the use of recording devices • the use of telephoto or infrared lenses • trespassing • entering a private place under false pretenses

Question 64

What do most people think of when they think of “invasion of privacy?”

Answer 64

The publication of private information

Question 65

How is the case for the publication of private information made?

Answer 65

1. There is publicity 2. about private facts 3. of a highly offensive nature to a reasonable person 4. that is not of legitimate public interest.

Question 66

Are publicity and publication synonymous?

Answer 66

Publicity and publication are not synonymous. Publicity means communication to the public at large – to a large number of people.

Question 67

What is a defense against the publication of private information?

Answer 67

Newsworthiness is a defense for the publication of private information. If the information is of public concern, the case cannot be made.

Question 68

Which of the four invasion of privacy torts looks like libel?

Answer 68

False light invasion of privacy. It involves the publication of information that is not true and is offensive but is not necessarily defamatory. The material causes people to believe something about the plaintiff that is untrue, but doesn’t necessarily damage the plaintiff’s reputation.

Question 69

To prove false light invasion of privacy, a plaintiff must prove:

Answer 69

• that the published material is highly offensive to a reasonable person, and • that it was published actual malice.

Question 70

Virginia only recognizes one of the four invasion of privacy torts. Which on does Virginia recognize?

Answer 70

Appropriation. The interests the other three torts are presumed to protect are protected in Virginia in other ways: by the tort of intentional infliction of emotional distress and by a variety of statutes.

Question 71

For a case of internal infliction of emotional distress to be made, what is the four part test?

Answer 71

the conduct on the part of the defendant must be intentional and reckless; • the conduct must offend generally accepted standards of decency or morality; • the conduct must cause emotional distress; • that emotional distress must be severe.

Question 72

What is privacy and how has it changed so much?

Answer 72

Privacy has taken on a multitude of different meanings and complexities thanks to the Internet and, in particular, social media. The old rule that if something occurs in public, it is public, is under scrutiny. In addition, courts are increasingly recognizing that if a person abdicates privacy in one area of the person’s life – as with a selfie or posting on a social media site – the person may be abdicating privacy in other areas of the person’s life

Question 73

What was the privacy act of 1974?

Answer 73

Meant to create a “code of fair information practices” to regulate government agencies

Question 74

What was the Buckley Agreement?

Answer 74

 Requires educational institutions receiving federal money to keep certain student records private

-Name, addresses, and majors are not covered but academic

 Rape Shield Laws

 Designed to encourage victims to come forward by preventing

 Juror Shield Laws

 Computer Privacy

 Health Insurance Privacy

 Do not directly apply to the media but they affect hospitals.

 HIPAA rules limit the use and disclosure of individuals’ health records including non-criminal disciplinary records are the additional trauma of publicity information by doctors, hospitals, health-care clearing houses, insurance plans, their business associates, and many

employers who provide health care coverage

Question 75

How did the USA Patriot Act increase federal authority?

Answer 75

Relaxed restrictions on the sharing of info between domestic law enforcement agencies

 Enhanced government’s subpoena power to

 Expanded bank record keeping requirements to

 Permitted roving wiretaps of suspected obtain and inspect email records of suspected terrorists track transactions and money laundering terrorists