linuxmafia.com 2016/linuxmafia.com.tar/linuxmafia.com/pub/skeptic/libel

Text File | 2015-12-18 | 5KB | 119 lines

Here's a short outline of libel/slander (i.e., defamation) law in the
USA and (generally) in common-law countries.  Some (e.g., UK) have moved
to stricter requirements on speakers, and no doubt there are significant
variations.


A defamatory statement is one that injures[1] the reputation of another
party, either by lowering the standing of the injured party in the
community or by tending to make others refrain from associating with
him.  However, it's not just any such statement.

-- If the speaker can prove that the statement is true, it is not
   defamatory.

-- For slander, it must _actually_ have had that effect on listeners,
   not just potentially.  That is, if you orally claim that X is a
   child-molester and all other tests are met, it's not defamation
   unless people actually believed your claim.  The assumption of
   actual damage[1] is only assumed in certain specific cases of
   "slander per se" (as always, assuming the claim is untrue):
        -- charges that plaintiff committed a criminal offence
        -- charges that plaintiff has one of certain "loathsome"
           contagious diseases
        -- charges that impute unchastity or adultery to any woman
        -- charges disparaging plaintiff's conduct of office,
           trade, calling, or business being conducted at that time

-- For libel, actual damages[1] are presumed if the statement is one
   one of a small number of types considered to be "libel per se"
   (defamation that is apparent on the face of a communication):
   charges of criminal activity, adultery, "contagious distemper,"
   or dishonesty, as well as any charge which injures the plaintiff
   in his or her trade, business, or profession."  Otherwise, actual
   damages must be shown by specific and unambiguous evidence of
   wrongful harm, which is called "libel per quod" (as opposed to
   "libel per se").

-- "Publication":  It must be made to a third party.  X telling Y
   _alone_ that Y is a child-molester does not defame Y.

-- Similarly, if X (above) tells only Y, and _Y_ then tells others,
   then X hasn't defamed Y -- because Y did the publishing.

-- The statement's not defamation if it's in a situation subject
   to "absolute privilege".  There is a list of such situations,
   including communications with one's spouse, and testimony in
   court or in legislative or executive governmental hearings.
   (It should be noted that you could evade slander, only to be
   charged with perjury.)

-- The statement's not defamation if it's in one of a variety of
   situations subject to "qualified privilege".  Most involve
   speaking on matters of public or community concern, and must
   be made without malice.  This is related to the press's 1st
   Amendment protection against restrictive legislation (such as
   libel law: NY Times v. Sullivan, US Supreme Court, 1964.)

-- The defamatory statement must be fairly understood by listeners
   to be a statement of fact, rather than opinion.  Opinions need
   not be fair to be privileged:  Unfair opinions are protected
   by law.  This distinction between allegations of fact and of
   opinion is a grey area that would be decided by the Court.  The
   key question would be whether the purported opinion implies some
   false factual claim, e.g. "I _think_ X is a murderer."

-- In most states, it is not defamation unless the speaker was
   negligent in checking his/her facts.  If he/she meets an implied
   standard of reasonable care and was mistaken, then he/she would
   be not liable.

-- Republishing someone else's libel/slander can itself be defamatory,
   if the "publisher" had the knowledge and opportunity to not do so.
   E.g., if a caller defames someone on a KGO radio talk show, KGO is
   probably not liable, but would not be protected if it later replayed
   that segment from tape.

-- The statement's not defamatory if the target's reputation is already
   so unsavoury that no damage was done.





[1] The injury must be quantifiable in terms of dollar value lost, not
just 'people think less of me'.  Damages (claims for monetary reputation
value lost) fall into several categories:

Compensatory aka Actual:  Provable real recent loss, e.g., because you
lost your job.

Speculative:  Provable future loss that is _likely_ to occur, e.g.,
because you lost business from a customer.

Consequential:  Money expenses that you incurred as a direct result
of the libel, e.g., to hire a reputation firm to clean things up.

The above three categories are collectively called 'special' (or
'economic') damages, damages that are capable of exact calculation
because they can be, and customarily are, calculated to the dollar.
_Every_ libel plaintiff is entitled to special damages, upon winning.


The other major category is called 'non-economic' damages, which are
not always available (depending on the court), and often require that
the offence meet some particular test of badness:

Punitive:  Money awarded simply to deter particularly bad defamation
in the future.

Pain and suffering, personal humiliation, shame, disgrace:  What you
expect.



Excellent write-up:
  https://web.archive.org/web/20120727233155/http://www.radford.edu/~wkovarik/class/law/1.5libel.html
Nolo Press about damages:
  http://www.nolo.com/legal-encyclopedia/damages-defamation-case.html