Wednesday, May 22, 2013

The truth about libel...

I had a discussion with a fellow writer recently about libel. I learned quite a bit about it in my Mass Comm Law class and it's worth sharing...

What exactly is libel? Well, libel laws vary from state to state but as a general rule, it is the published defamation of character which can include written texts, graphics and pictures. Libel may expose a person to shame, contempt, embarassment, injures their reputation or harms them in their occupation. There are some elements one must prove in order to establish libel. The most common are publication, identification, harm, and fault. If any of the legally established elements can't be proved, then the statement is not considered libelous.

  • Publication is a statement communicated to a third party other than someone whom the statement is about.
  • Identification is when the statement identifies a person or "of and concerning" that person.
  • Harm is when a statement seriously shames, ridicules, disgraces or injures a person's reputation. According to the SPLC (Southern Poverty Law Center), statements which are "mildly embarassing, confusing or inaccurate" do not meet the harm test.
  • When establishing fault, the person suing has to prove the person who made the statement failed to do something they should've done which includes checking sources, fact-checking, etc.

There are also elements of defense in a libel case including privilege, fair comment and criticism, libel-proof, rhetorical hyperbole, and truth.

  • Privilege is the accurate reporting of a proceeding, such as a jury trial.
  • Fair comment and criticism is the expression of opinions no matter how critical.
  • Libel-proof plaintiff argument can be used when some plaintiffs already have bad reputations. One can't be harmed if their reputation is already damaged.
  • Rhetorical hyperbole such as humor and satire which is normally understood to be interpreted as figurative and not literal.
  • Truth. That one certainly doesn't need explanation. And by the way, even if a statement hurts a person's reputation, it is not libelous if it can be proved true. 

Writers should do their best to avoid libelous statements. Yes, it's true, we all screw up, but for the most part if we trust our gut (it's usually right), check our sources, and use good judgment,  we'll be okay.

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