FUNDAMENTALS

Libel

A JOURNALIST'S QUICK GUIDE TO LIBEL AND PRIVACY

1. What is libel? A libel is a published defamation of an identifiable person. To win a libel suit, plaintiff must prove publication, defamation, identification, falsity, fault and harm or damages. Words, pictures, cartoons, sculpture, photos, paintings and much more that expose a person, company or institution to public hatred, shame, disgrace or ridicule, or induce an ill opinion are libelous. They also are the stuff of which the best stories are often made.

2. What if you publish a libel? Can you be sued? Yes, but you may not lose. There are three basic defenses: Provable truth, fair comment and privilege. In other words, if you can prove your story is true, or if it is fair comment about entertainers, officials or others in the public eye, or if you are accurately reporting on a public meeting or public records (privilege) then you need not fear a libel suit.

3. What if you have no defense but think it's a valid story that should run? Think twice and ask a lawyer. Be sure your editor knows a lawsuit is a possibility.

4. What if you are sued and you have no defense? Then you rely upon mitigating factors to either lessen the damages in court, or to reduce damages if you settle out of court. Mitigating factors are such things as deadline pressure, lack of malice, a quick correction, an honest mistake, you believed a normally reliable source. A good rule of thumb: Get confirmation from two sources before you go with something that may be libelous.

5. What are damages? In most cases, money. Special damages are to compensate a person for loss of income, wages, etc. Generally, compensatory damages are asked as payment for the libel. Punitive damages (these are the biggest) are assessed to punish the publisher.

6. Good intentions will not spare you from being sued.

7. Privacy: Lawyers often say it takes up where libel leaves off.

8. What constitutes invasion of privacy? Laws vary but all states agree there are four ways privacy may be invaded: Intrusion on physical solitude (a man's home is his castle); publication of private matters violating ordinary decencies (even if they are true); putting a person in a false light, as by signing someone else's name to a letter to the editor; appropriation of a person's name, likeness or some element for commercial use. A developing fifth area is a right of publicity -- celebrities control their image.

9. A person doesn't have to prove actual monetary loss or defamation to win a privacy suit. Libel concerns reputation, privacy concerns peace of mind.

10. Unlike questions of defamation, truth is not necessarily a defense in privacy cases. You may tell the truth and still lose a privacy case (see 8 above).

11. As in libel cases, fabrication -- making things up -- is a sure way to lose.

12. Newsworthiness has proven to be the strongest defense in privacy cases, and consent by a person to use material about the person, a photo, for example, also generally works, but only if the consent is for the use you actually make of it.

Ted Stanton

BEYOND THE BASICS