Libel laws should be rewritten

“Good evening and welcome to the news . . . This just in – (insert your name here) has committed a despicable crime.”

Imagine if someone published something defamatory and untrue about you.  Your character could be ruined; your reputation forever questioned.

Fortunately, at least in the US, there are laws preventing this scenario from happening.

Unfortunately, the laws aren’t perfect. Let’s take a look at libel.

The first amendment to the US Constitution says in part: “Congress shall make no laws . . . abridging freedom of speech . . .  or of the press.”  Over the years, however, exceptions have been made; certain parts of speech are not protected, including speech that would advertise illegal products, speech that would endanger national security, and as in the example above untrue, defamatory speech (or libel).

If you picked up the paper and saw the following erroneous report: “(insert your name” committed a crime,” your next move, if you’re like me, would most likely be to pick up the phone to call your lawyer.

You lawyer would verify that four elements were present:

1. You were identified (Your name doesn’t need to be included as long as there was enough information that the average person could determine you were the person being described).

2. The information was published (This has come to mean that at least three people have seen the statement under question.

3. The information was defamatory (You must be able to show that the statement hurt your  reputation)

 4. Negligence. Each state has its own standard of negligence. (a common standard of negligence is that the reporter took the care that the average reporter would take to determine that the information presented was true – in other words, the reporter verified the information with at least two independent sources).

If the case went to court, the burden of proof would be on the defendant: the newspaper(s) that published the libelous statement. There are defenses for libel, including truth and privilege. The reporter would be vindicated if he could prove that the information published was true or if she received the erroneous information through official proceedings such as in a testimony given in court.

Because reputation and character are so valuable and in an effort to reduce the number of libel cases, courts generally award million dollar settlements as in the case of Richard Jewel falsely accused by several newspapers as being the Centennial Park bomber during the 1996 Olympic games in Atlanta.

Negligence is the standard for libel when a private individual is the victim; however negligence changes to “actual malice” if the person libeled was a public official (elected to office), a public figure (someone who voluntarily thrusts themselves into the limelight) or a limited-purpose public figure (a private individual involved in a public event). This is where libel law goes looney.

For this “public” category, the burden of proof falls on the plaintiff to prove that the information was published with knowledge of falsity or reckless disregard for the truth. Basically a public official would have to show that the publication responsible for libeling him knew in their minds that what they were publishing was not true. This hurdle is too high. I agree with our founding fathers that the press must be a watchdog, the fourth estate, free to criticize corruption in government, but proving actual malice is tantamount to  requiring mind reading. Furthermore, just because they have access to the media, I find it perposterous that celebrities and private individuals involved in public events are lumped into the actual malice pool.

I think it’s time to reconsider libel laws.

According to An unfettered press: Libel law in the United States, “the threat of being sued causes many news organizations to shy away from publishing controversial stories. Large media outlets like CBS or the New York Times have the financial resources to battle expensive libel lawsuits. But smaller newspapers and television stations find it more difficult to afford such a costly burden. The ongoing debate over libel has prompted at least one proposal for a new set of libel laws that would make it easier for public officials and others to prove their cases. The proposal — drafted by a private committee of lawyers, law professors, and media representatives — also would eliminate large financial awards that can be assessed against media groups found guilty of libel.” 

For information on libel in the blogosphere, check out these links. 

Bloggers gain libel protection

The Chilling Effect

Also check out the movie Absence of Malice. “In America can a man be guilty until proven innocent?”