LIBEL

The right of a free press is guaranteed in the First Amendment of the Bill of Rights and in Article 1 §7 of the Pennsylvania Constitution. However, this does not give people the right to say anything they want or newspapers the right to publish everything they want. Rights of defamed (slandered or libeled) persons are often held by the courts to be more important than other parties' freedom of speech and expression. Care must be taken so the publishing of the news and peoples' opinions do not violate the rights of others and give rise to a cause of action for libel.

Libel occurs when a false and defamatory statement is published which tends to harm a person's reputation or expose him or her to public hatred, contempt or ridicule. It is important to remember that defamation can be in many forms, including articles, headlines, advertising, letters to the editor, sports columns, drawings, opinions, outlines, and photographs.

Back to top.

Avoiding and Handling Libel Complaints

The following, excerpted from pages 3-4 & 13 of the booklet Synopsis of the Law of Libel and the Right of Privacy, by Bruce W. Sanford, Esq. of Baker, Hostetler and Patterson of Cleveland, Ohio, suggests ways to avoid libel complaints.

Back to top.

How to Avoid Libel and Invasion of Privacy Lawsuits

1. Avoid slipshod, indifferent or careless reporting. Whenever a statement could injure someone’s reputation, treat it like fire. The facts of a story should be confirmed and verified, as far as practicable and in accordance with usual news gathering procedures.

2. Truth is a defense, but good intention in reporting an untruth is not. Remember, there may be a vast difference between what’s true and what can be proved to be true to a jury. When in doubt as to whether a story is libelous, do not publish or broadcast it until you are sure it is not libelous. Remember, a retraction is not a defense to a libel action but serves merely to mitigate or lessen damages.

3. Make reports of arrests, investigations and other judicial or legislative proceedings and records precisely accurate, full, fair and impartial. Use of unsubstantiated information from law enforcement officers has ensnared many reporters in libel lawsuits. Limit comment or criticism to matters of public interest based on facts which are fully stated in the comment and which are true.

4. Try to get the "other side of the story." A good reporter sticks to the facts and not to some bystander’s opinion of what might be the truth if the facts were known. The eventual "write-up" of a story should be objective and never colored by the enthusiasms or opinions of the reporter.

5. Particular care should be taken in publishing quotations. The fact that a person is quoted accurately is not in itself a defense to a subsequent libel action, if the quoted statement contains false information about someone.

6. Never "railroad" a story through, but instead write it, check it out and edit it carefully to make sure it is accurate and says precisely what you want to say.

7. Avoid borderline cases of invasion of privacy, since the law of the right of privacy is still developing.

8. Avoid gossip and the unauthorized use of names and pictures for advertising or other commercial or promotional purposes. Use the name or picture of a person only when identified relative to the subject matter of the publication. Never use unidentified pictures to illustrate social or other conditions, when pictures of people who expressly consent, including professional models or staff members, will suffice and are readily obtainable.

9. If an error has been made, always handle demands for retractions that come from a lawyer for a potential plaintiff with the advice of legal counsel. A well-meaning but unnecessary or poorly worded correction may actually prejudice a publisher's or broadcaster's defenses in a subsequent lawsuit.

Back to top.

Pennsylvania Libel Law

Uniform Single Publication Act (42 Pa. C.S.A. § 8341 et. seq.)

(42 Pa. C.S.A. § 8341 et. seq.)

The law that governs libel in Pennsylvania is the Uniform Single Publication Act. As a general rule, no one may have more than one cause of action (grounds for a lawsuit) for damages for libel, or invasion of privacy founded upon any single publication, such as any one edition of a newspaper. Recovery in any libel or invasion of privacy claim shall include all damages suffered by the person and, in some cases, punitive damages.

Basically, if a newspaper publishes only one defamatory story about an individual, there can only be one cause of action, no matter how many copies of that day's newspaper is printed or how many people read that day's newspaper. If a newspaper publishes similar defamatory stories on two consecutive days, even if the subject matter is basically the same, there will be two causes of action. Likewise, if a publisher publishes the same identical story in two separate publications (such as a daily and a weekly newspaper), the plaintiff will have two separate causes of action.

Back to top.

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

In a libel case, the plaintiff has the burden of proving the following:

(42 Pa. C.S.A. § 8343) In a libel case, the plaintiff has the burden of proving the following:

1. The defamatory character of the communication (including printed statements).
2. Its publication by the defendant.
3. Its application to the plaintiff.
4. The understanding by the recipient (such as a reader) of its defamatory meaning.
5. The understanding by the recipient of it as intended to be applied to the plaintiff.
6. Special harm resulting to the plaintiff because of its publication (such as impairment of reputation and standing in community, personal humiliation, mental anguish and suffering, and any other injury of which libel is legal cause).
7. Abuse of a conditionally privileged occasion (for example, if a newspaper publishes an article that creates the impression that the plaintiff's actions were worse than what a complaint about the plaintiff implies, Pennsylvania's "fair report" privilege will be forfeited).

The defendant must prove at least one the following to avoid liability for libel:

1. The [substantial] truth of the defamatory communication.
2. 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).

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

Back to top.

Malice or negligence necessary to support award of damages (42 Pa. C.S.A. § 8344)

(42 Pa. C.S.A. § 8344)

In a libel action, no damages may be recovered unless it has been established that the publication has been maliciously or negligently made. When malice or negligence appears, the jury may award damages as they deem proper.

Back to top.

Defenses to Libel:

Justification a defense (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).

Back to top.

Libel and Confidentiality:

 

Libel lawsuits in Pennsylvania (and also in federal courts when a Pennsylvania libel suit is being decided) affect a newspapers right to protect confidential information. Unpublished documentary information (including a reporter's notes) is discoverable by a plaintiff in a libel action to the extent that the documentary evidence does not reveal (or reasonably lead to the discovery of) the identity of a personal source of information or may be redacted to eliminate the revelation of a personal source of information. It does not matter whether the newspaper or reporter is a party to the lawsuit. They can still be compelled to disclose this information in a lawsuit between two other unrelated parties.

Back to top.

A historical summary of U.S. Supreme Court libel cases

Although every libel case is different and depends on the facts in each case, there are some general rules that the Supreme Court has adopted and modified in past decisions. An understanding of these evolving rules may prove helpful to reporters, ad executives, editors and publishers making difficult decisions on potentially libelous material. Remember, both Pennsylvania and federal law apply to libel. If there is a conflict between Pennsylvania and federal law, federal law will be controlling.

In New York Times v. Sullivan, 376 U.S. 254, 1 Med. L. Rptr. 1527 (1964), the Supreme Court established the rule that a "public official" can only recover damages for libel by proving that a defamatory statement was published either with actual knowledge of its falsity or with "reckless disregard" of whether it was true or false.

In St. Amant v. Thompson, 390 U.S. 727 , 1 Med. L. Rptr. 1586 (1968), the Supreme Court applied these libel standards to a candidate for political office and also discussed how other courts have interpreted the meaning of the publishing with "reckless disregard as to truth or falsity." The Court stated:

These cases make clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubt shows reckless disregard for truth or falsity and demonstrates actual malice.

The Supreme Court continued with this discussion with an analysis of what a newspaper would have to show in order for a jury to find that the newspaper had not printed a defamatory statement with “reckless disregard as to its truth or falsity.” The Court stated:

The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the Defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.

In Curtis Publishing Co. v. Butts, 388 U.S. 130, 1 Med. L. Rptr. 1568 (1967), the New York Times rule for “public officials” was expanded to apply to “public figures.” “Public figures” are individuals who have either assumed roles of special prominence in the affairs of society or who occupy positions of such persuasive power and influence, or achieve general fame and notoriety that they are deemed “public figures” for all purposes or for a limited range of issues.

In Pennsylvania the following persons have been held to be public figures: a well-known entertainer, a former professional football player, a police officer and the president of a taxi company who voluntarily involved himself in a public debate over fare increases. However, individuals drawn into a public forum against their will are not considered “public figures,” the U.S. Supreme Court found in Firestone v. Time lnc. 424 U.S. . 448,1 Med. L. Rptr. 1665 (1976). In the Firestone case, Time had published a short note on the divorce proceeding of Mrs. Firestone, a prominent Florida socialite who, during her divorce proceedings, had held a press conference.

Likewise, in Gertz v. Robert Welch, Inc., 418 U.S. 323,1 Med. L. Rptr. 1633 (1974), the Supreme Court explained that because “public officials and public figures usually enjoy significantly greater access to the channels of effective communications... [they] have a more realistic opportunity to counteract false statements than private individuals normally enjoy.” Thus, private individuals should be held to a lesser standard and must only prove mere negligence in a libel suit. However, in order to obtain punitive damages, a private plaintiff must meet the New York Times standard by proving that the defamation was published either with actual knowledge of its falsity, or with reckless disregard as to its truth or falsity. Finally, in Gertz, the court distinguished between false statements of facts and opinions. While opinions can best be countered by other opinions, “there is no constitutional protection for false statements of fact.”

In Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767, 12 Med. L. Rptr. 1977 (1986), the Supreme Court struck down a Pennsylvania Law which had required the media defendant to prove the truth of an article as a defense to a libel claim. Now it is the plaintiff’s burden to prove falsity as well as fault rather than the defendant’s burden to prove truth.

In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 14 Med. L. Rptr. 2281 (1988), the Supreme Court found that the First Amendment precluded recovery under a claim of emotional distress for an ad parody which “could not reasonably have been interpreted as stating actual facts about the public figure involved.”

In Milkovich v. Lorain Journal Co., 110 S. Ct. 2695, 17 Med. L. Rptr. 2009 (1990), the Supreme Court returned to the distinction it had made in Gertz between fact and opinion. In a newspaper column accusing a wrestling coach of perjury, the Court decided that a person who published an opinion that the coach lied implied that he had knowledge of facts that led him to the conclusion that the coach lied. The court found that merely expressing such statements in terms of an opinion did not dispel the implication that it was based on fact. Thus, such a statement could be considered defamatory.

More recently, in Mason v. New Yorker Magazine, Inc., 501 U.S. 496, 18 Med. L. Rptr. 2241 (1991), the Supreme Court determined that a deliberate alteration of a plaintiff’s words does not equal knowledge of falsity, unless the change resulted in a material change in the meaning of the statement. In other words, to be found libelous a defendant must have acted with knowledge or reckless disregard of any differences between what had been said and what was quoted.

Remember, defamation law is an ever-evolving subject area. State and federal courts continue to make decisions that affect the rights of plaintiffs and defendants in libel cases. Any questions concerning the publication of possibly defamatory information should be directed to an attorney.

Back to top.

Red Flag Words

A
addict
adulteration of products
adultery
alcoholic
altered records
atheist

B
bad moral character
bankrupt
bigamist
blacklisted
blackmail
booze-hound
bribery
brothel
buys votes

G
gambling den
gangster
gay
graft
groveling office seeker

H
herpes
hit-man
hypocrite

I
illegitimate
illicit relation
incompetent
informer
insider trading
intemperate
intimate
intolerance

J
Jekyll-Hyde personality

K
kept woman
Ku Klux Klan

M
mafia
mental illness
mobster
moral delinquency
mouthpiece

N
Nazi

P
paramour
peeping Tom
perjurer
plagiarist
pockets public funds
profiteering
prostitute

S
scam
scandalmonger
scoundrel
seducer
sharpdealing
shyster
slacker
smooth and tricky
smuggler
sneaky
sold influence
sold out
spy
stool pigeon
stuffed the ballot box
suicide
swindle

T
thief

U
unethical
unmarried mother
unprofessional
unsound mind
unworthy of credit

V
vice den
villain

Back to top.

Avoid any words or expressions imputing:

  1. a loathsome disease (sexually transmitted diseases, leprosy, etc.);
  2. a crime, or words falsely charging arrest, or indictment for or confession or conviction of a crime;
  3. anti-Semitism or other religious, racial or ethnic intolerance;
  4. connivance or association with criminals;
  5. financial embarrassment (or any implication of insolvency or want of credit);
  6. lying;
  7. membership in an organization which may be in disrepute at a given period of time;
  8. poverty or squalor;
  9. unwillingness to pay a debt.

Back to top.

Contact Us  |  3899 North Front Street, Harrisburg PA 17110  |  Phone: (717) 703-3000  |  Fax: (717) 703-3001