The Libel Perils of Publishing a Print and/or Online Newspaper Tom Cronin October 4, 2019
Presenter Tom Cronin Partner - Gordon Rees Scully Mansukhani LLP Chicago 2
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TOPICAL OVERVIEW Defamation and Libel Generally Liability for Newspaper Libel Seminal Cases Famous Cases Defenses How to Avoid Libel: Best Practices Questions (Time Permitting) 4
Defamation and Libel Generally In Illinois and most jurisdictions, the distinction at common law between spoken and written defamation (slander and libel) has been abandoned, and courts now treat them the same. Bryson v. News Am. Publications, Inc. , 174 Ill. 2d 77, 89 (1996) 5
Defamation and Libel Generally Illinois elements: Defendant made a false statement about the plaintiff 1. Defendant made an unprivileged publication of that statement to a third party 2. The publication caused damages (unless the statement amounts to defamation per se ) 3. See Rupcich v. United Food & Commercial Workers Int'l Union Local 881 , 69 F. Supp. 3d 889 (N.D. Ill. 2014); Krasinski v. United Parcel Service, Inc. , 124 Ill. 2d 483 (1988). Statute of limitations: One year (735 ILCS 5/13-201) – Wisconsin elements: A false statement 1. The statement is communicated to a third person 2. The statement tends to harm the reputation of the subject to lower that person in the 3. estimation of the community or deters others from associating or dealing with them. See Rumpel v. Bank of Buffalo , 1992 WL 50176 (Wis. Ct. App. Jan. 22, 1992). Statute of limitations: Two years (Wis. Stat. § 893.57 ; see also Ladd v. Uecker , 780 – N.W.2d 216 (Wis. 2010)) 6
Defamation and Libel Generally Defamation per se vs. Defamation per quod • Defamation per se – Proving damages not necessary. – “its harm is obvious and apparent on its face.” » S olaia Tech., LLC v. Specialty Publ'g Co. , 221 Ill.2d 558 (2006). – In Illinois, words are defamatory per se if they impute: 1. a person has committed a crime 2. a person is infected with a loathsome communicable disease 3. a person is unable to perform or lacks integrity in performing their employment duties 4. a person lack ability or otherwise prejudices that person in their profession 5. a person has engaged in adultery or fornication. Van Horne v. Muller , 185 Ill.2d 299 (1998) 7
Defamation and Libel Generally Defamation per se vs. Defamation per quod • Defamation per quod – Everything else – Plaintiff must prove that she sustained special damages » Emotional distress » Harm to reputation » Humiliation » Embarrassment » Economic damages (loss of income/business) 8
Defamation and Libel Generally Slander Statutes Illinois Slander and Libel Act (740 ILCS 145/1) “If any person shall falsely use, utter or publish words, which in their common acceptance, shall amount to charge any person with having been guilty of fornication or adultery, such words so spoken shall be deemed actionable, and he shall be deemed guilty of slander.” 9
Elements of Newspaper Libel 10
Liability for Newspaper Libel Elements 1. False and defamatory statement 2. An unprivileged publication to a third party 3. Fault or at least negligence on the part of the publisher 4. Actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Restatement (Second) of Torts § 558 Hatfill v. New York Times Co. , 416 F.3d 320 (4th Cir. 2005), cert. denied, 126 S. Ct. 1619 (U.S. 2006) 11
1. False and Defamatory Statement • The truthfulness of a statement generally precludes a libel action. • Defamatory statement - Per se or per quod standards apply Harrison v. Chicago Sun-Times, Inc. , 341 Ill. App. 3d 555 (1st Dist. 2003) The statement on a newspaper’s front page that the mother had kidnapped her daughter was found to be substantially true because the mother had been found liable for child abduction by a federal district court. Thus, the mother’s lawsuit against the newspaper was not valid. 12
2. Unprivileged Publication to a Third Party • Qualified privilege of “fair report” – The publication of defamatory matter in a report of an official action or proceeding, OR – The publication of a meeting open to the public that deals with a matter of public concern. – The publication must be accurate and complete or a fair abridgement of the occurrence reported. If deemed a “fair report,” then it is privileged, and libel action is not • valid. See Restatement (Second) of Torts § 611; Harrison v. Chicago Sun- Times, Inc. , 341 Ill. App. 3d 555 (1st Dist. 2003) 13
3. At Least Negligence • The plaintiff is not required to prove that the publication was intentional. Showing that the statement was negligently made is sufficient. This element may be proven if the defamer knew or should have known that another person would hear or read the communication (Restatement (Second) of Torts, §577, illus. 6). • BUT…level of fault depends on the status of the plaintiff. – Public Figures and Officials : Must prove actual malice (knowing that the allegation was false or recklessly disregarding whether it was false. See New York Times Co. v. Sullivan ) – Private individuals : Negligence is usually sufficient. 14
4. Actionability • The statement must be “of and concerning” the plaintiff. – Reasonable person would understand that the statement is referring to him or her. If Defamation per se – actual damages not required. • If Defamation per quod – must plead and prove damages. • • Libel-Proof Plaintiff Rule – Some jurisdictions recognize that when a plaintiff’s reputation for a particular trait is sufficiently bad, it cannot be further damaged as to that trait by the alleged libelous publication. – See Lamb v. Rizzo , 391 F.3d 1133(10th Cir. 2004) (applying Kansas law; Armistead v. Minor , 815 So. 2d 1189 (Miss. 2002); Davis v. The Tennessean , 83 S.W.3d 125 (Tenn. Ct. App. 2001). 15
SO… Are any of these headlines defamatory??? 16
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Seminal Cases 23
Seminal Cases New York Times Co. v. Sullivan , 376 U.S. 254 (1964) Holding: Newspapers and other publications cannot be held liable for libel to public officials unless a plaintiff can prove “actual malice.” The Court defined “actual malice” as: “with knowledge that [the statements] are false or in reckless disregard of their truth or falsity.” This standard provides a free speech safeguard for news publications when the conduct of public officials is involved, but does not extend to nonpublic persons. The Court reached the same rule in Curtis Pub. Co. v. Butts , 388 U.S. 130 (1967) as applied to public figures. 24
Seminal Cases Gertz v. Robert Welch, Inc. , 418 U.S. 323 (1974) Proving actual malice is not necessary to prove defamation of a private person; negligence is sufficient. 25
Seminal Cases Time, Inc. v. Hill, 385 U.S. 374 (1967) Proof of knowledge or reckless disregard of a statement’s falsity is required “to redress false reports of matters of public interest.” The Court extended actual malice standard to the tort of false light (publishing something highly offensive or embarrassing). 26
Famous Newspaper Libel Examples 27
Famous Cases Katie Holmes v. American Media, Inc. (Star Magazine) U.S. District Court for the Central District of California March 2011 28
Famous Cases Katie Holmes v. American Media, Inc. (Star Magazine) U.S. District Court for the Central District of California March 2011 • Claim for libel per se . • The complaint alleged that: “the average reader [would] understand the pronouncements on Star – Magazine’s cover to mean that plaintiff has become shockingly addicted to drugs…” – “The statements on American Media’s magazine cover were totally and unequivocally false and defamatory.” – The actual story in the magazine was about Holmes’ use of an “e-meter,” which is used in counseling sessions at the Church of Scientology and could cause a person to feel euphoric. Holmes asked for more than $50 million and punitive damages. • 29
Famous Cases 30
Famous Cases Tom Cruise v. Bauer Publishing Company U.S. District Court for the Central District of California October 2012 31
Famous Cases Tom Cruise v. Bauer Publishing Company U.S. District Court for the Central District of California October 2012 • Claim for Libel per se and Invasion of Privacy/False Light. • The publication came shortly after Tom Cruise and Katie Holmes divorced. • The complaint alleged that: “Any such reader, upon seeing the assertion, would understand this – statement’s plain meaning: that plaintiff has cut off all ties with his daughter, has completely and permanently abdicated his parental responsibilities, and no longer wants Suri to be part of his life.” – The assertions that Cruise abandoned his child are false. – The statements were published “with knowledge of their falsity and/or in reckless disregard of the truth.” – Defendants portrayed Cruise in a false light by publishing knowingly false allegations. Cruise asked for more than $50 million and punitive damages. • 32
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Famous Cases Tom Cruise v. Bauer Publishing Company U.S. District Court for the Central District of California October 2012 34
Defenses 35
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The Strongest Defense… 37
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