Defending Against Libel

Burden of Proof (42 Pa. C.S.A. § 8343)

In a libel case, the plaintiff has the burden of proving the seven elements required by 42 Pa. C.S.A. §8343 (the defamatory character of the communication, publication by the defendant, application to the plaintiff, the understanding by the recipient of its defamatory meaning, the understanding by the recipient of it as intended to be applied to the plaintiff, special harm resulting to the plaintiff because of its publication, and abuse of a conditionally privileged occasion). If the plaintiff is able to prove these elements, the defendant must prove at least one the following elements to avoid liability for libel:

  • The [substantial] truth of the defamatory communication.
  • The privileged character of the occasion on which it was published (such as Pennsylvania 's "fair report" privilege) .

See: First Lehigh Bank v. Cowen, 700 A.2d 498, 26 Med. L. Rptr. 1075 (Pa.Super., 1997). ( Pennsylvania 's "fair report" privilege protects newspapers when they print fair and accurate information taken from private civil complaints upon which no judicial action has been taken).

  • The character of the subject matter of defamatory comment as of public concern (an interest of social importance).

Defenses to Libel:

Justification (42 Pa. C.S.A. § 8342): If a publication is substantially true, is of public interest (some interest of social importance such as termination of public employees or other political disputes), and is not maliciously or negligently made (knowing it was false or with serious doubts about its truth ) then a defense exists to any libel claims.

Consent: Consent to publication creates an absolute privilege against a plaintiff's defamation claim. However, the publication must be within the scope of the consent given by the defamed person. Consent of another to the publication of defamatory matter concerning him is a complete defense to his action for defamation. The privilege conferred by the consent of the person about whom the defamatory matter is published is absolute. The protection given by it is complete, and it is not affected by the ill will or personal hostility of the publisher or by any improper purpose for which he may make the publication.

Fair Report Privilege: A case-law privilege has evolved in Pennsylvania courts that permits the press to publish accounts of official proceedings or reports even when they contain defamatory statements so long as the accounts present a fair and accurate summary of the proceedings. Reporters can publish accounts of court documents (such as complaints) and search warrants used in public investigations. The privilege will be upheld if the published account produces the same effect on the mind of the reader that the precise truth would have produced. If the published account is a fair and accurate rendition of the document used to base the story upon and does not carry a greater "sting" than the document itself, the privilege protects the newspaper from any liability for libel.

See: First Lehigh Bank v. Cowen, 700 A.2d 498, 26 Med. L. Rptr. 1075 (Pa.Super., 1997). ( Pennsylvania 's "fair report" privilege protects newspapers when they print fair and accurate information taken from private civil complaints upon which no judicial action has been taken).

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