In writing news it is not always easy. to determine the exact point at which the public’s right to know is greater than the individual’s right to his good name. A reporter must constantly be — aware that a person’s reputation (his name) is of tangible value The reporter who damages it, even unintentionally, could do irreparable harm to that person’s position in society, his means of earning a livelihood. Such damage, if done hey ond the bounds of what a newspaper is legally entitled to print, is called defamation
Defamation is divided into two categories, libel and slander. As a general rule, in the view of courts, libel is written defamation and slander is spoken. Others have defined libel as that type of defamation which can be observed by the sense of sight, and slander as that which is conveyed by the sense of hearing. Some courts have expanded the definition of libel, making it include all defamation which offers a greater potentiality of harm than does slander. As a result, written materials, signs, cartoons, television and even radio broadcasts which have been taped or presented from written scripts have been adjudged as libel
Defamation Defined: Defamation has been defined as that which tends to diminish the esteem, respect, goodwill or confidence in which a person is held or to incite adverse and derogatory feelings and opinions against him. A person may defame another either’ by outright expressions or by insinuation or innuendo.
The first major question involved in a defamation case is whether the written or spoken words or signs are defamatory in the eyes of the law. It is important to keep in mind that the media do not have prerogatives greater than those of the ordinary citizen, except as granted by statute. Mere words of abuse and a certain amount of vulgar name-calling, for example, may be tolerated, but only when understood to amount to nothing serious. Objective (uniform) standards by which the court determines what is and what is not defamatory language do not exist. Whether the language is defamatory must be determined usually from the circumstances surrounding the alleged violation. Generally, the judge determines whether the language is capable of bearing a defamatory meaning and the jury decides whether it was in fact defamatory, i.e., whether it was so understood.
Who Can Be Defamed. Any living person enn he defamed A dead person cannot be defamed; however, if the words reflect upon any living person (such as a survivor), the survivor can bring an action in his own right. A corporation or a partnership can be defamed by language which casts aspersions on its honesty, credit, efficiency and other business character. Individual professionals such as doctors and lawyers can be defamed if the language casts aspersions on their honesty or ability to practise their profession. For example, to call a doctor a quack or a lawyer a shyster could be libelous.
Every person instrumental in the publication of a libelous statement is responsible. This usually includes the person making the statement, the reporter, the editor and the newspaper itself, but the newspaper alone is made the defendant in many suits
Interpretation of Defamatory Words. In all actions for libel and slander, the words alleged to be defamatory must be interpreted as such; they must be understood in the defamatory sense whether or not they are believed by the listeners or readers. If the defamatory meaning arises only from the facts not apparent upon the face of the publication, the plaintiff must establish the defamatory meaning with reference to such facts. If the words are defamatory. upon their faces (such as naming the wrong person as a convicted criminal), this is defamatory per se and it does not require proof of the meaning gathered from surrounding events to be adjudged libelous. Such statements as “it is alleged,” “it was reported” or “according to police” do not protect a reporter from making a libelous statement.
Proof Needed. Formerly all libel was actionable without proof of some injury or harm to persons or property. Today, however, many jurisdictions treat libel like slander in that they require proof of damages incurred except in the following cases:
1. The imputation of a serious crime involving moral turptiude.
2. The imputation that the party is infected with a contagious disease.
3. The imputation affecting the plaintiff in his business, trade, profession or office
4. The imputation reflecting upon the chastity of a woman
However, all jurisdictions hold that words which are libelous per se are actionable without damage having to be shown, although in most libel cases an effort is made to show damage in order to increase the amount of the judgment.
Intent to Libel. In earlier years a person being sued for libel would plead in court that he had not intended to libel the plaintiff, because to do so might reduce the amount of damages. Today, however, “innocent intent” may shield him completely under the rule.
Television and Radio- Whether Libel or Slander. Defamation via television is generally considered libel because it is the type of defamation which can be detected by the sense of sight. The vast audience and the ensuing increase in the likelihood of harm are additional reasons given for this interpretation. Radio presents a different problem. Most courts have held that defamation through the medium of radio is slander unless the broadcast is made from a prepared script or from a tape or other recording
Defenses of Derogatory Statements. The defenses of a newspaper in publishing a defamatory statement about a person or thing are (1) the statement is the truth, (2) the newspaper is “privileged” to print the statement and (3) the statement is a fair comment or criticism of the person. In a defense, it is the responsibility of the newspaper to prove the statement true, or privileged or a fair comment
Truth As a Defense. A newspaper’s strongest defense against libel is to be able to prove what it prints is true. A reporter must not rely on hearsay, opinions or rumours if a statement in any way borders on being libelous. A report that “Mahmud Malik” said Asif Khan robbed the store” is libelous unless the reporter can prove Asif actually robbed the store. (Or unless the report is privileged, as explained in the following paragraphs.) Calling a building an “alleged house of ill repute” libels every person living in that house unless the statement can be proved. Fortunately, it is not necessary to prove that a story is meticulously true. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance
If a statement is true, a libel suit probably will not arise, for truth is generally accepted as a “complete defense.” In some states, however, the newspaper’s defense must also show justification in printing a derogatory statement that is true. In these states the newspaper must show a good motive for publishing the statement
Privilege As a Defense. The reporter is privileged to report derogatory statements which are taken from legislative, judicial or other public and official proceedings and records without fear of successful libel or slander action. Since the meetings and records of such groups as city councils and state legislatures Me generally open to the public, the newspaper has a right to step in and represent the public. If a person is defamed in these proceedings, he cannot recover damages. The public’s interest, in such cases, outweighs the individual’s right to reputation, even though he may suffer real harm. The immunity for the participant in official proceedings is called “absolute” privilege. As long as what is said is relevant to the business of the proceedings it is privileged and not actionable. Anyone reporting such proceedings is given an
immunity from successful suit for defamation, also. The protection granted the reporter is somewhat more limited in that it does not protect malice in reports (in most states). As a result, it is known as “qualified” privilege. There are other considerations that must be met by the reporter to enjoy this “qualified” privilege. The story must be a fail’ and accurate account of the proceedings. Great caution is necessary in quoting from official proceedings, puhlic records, police reports and other public sources of information
Fair Comment. The newspaper also has the right of every citizen to criticize things offered for public approval-omen, measures and institutions of puhlic concem–provided such criticism is fair, is not actuated by malice and is not unjustifiably extended to the private life of a person involved. This category includes such persons as writers, authors, musicians, speakers and other performers and their works which may be submitted for public acceptance. The writer should be careful, though, to criticize only the substance of an author’s book, the quality of an actress’s performance or the caliber .or contents of the actual speech of the public speaker
Criminal Libel. Most libel cases go to civil courts, with the plaintiff suing for damages, but certain cases appear also in criminal courts and may be punishable by fine and imprisonment. Some countries hold that criminal prosecution is possible if the statement tends to provoke the person about whom it was printed to wrath, to expose him to public hatred, contempt or ridicule or to deprive him of the benefits of public confidence and social intercourse. Two other special circumstances can be involved. One is libel of the dead, which is presumed to provoke relatives and friends of the deceased to violence, and the other is libel of groups when the libel provokes violence. Both are quite rare, however. Since criminal statutes vary on these points, it is best that the reporter consult his state statutes for the exact rules followed in his country
Retractions of Libelous Statements. Newspapers attempt to avoid lib~l suits by publishing retractions of statements which are unquestionably libelous. The retraction should point out and correct the newspaper’s errors, and the newspaper should apologize to the person or persons concerned. The retraction notice, in order to be effective, must generally be given space or time that is equivalent to the defamatory matter. For instance, if the defamatory material was printed on the first page of a newspaper, the retraction notice should be published on the first page. The retraction does not nullify the claim for damages against the newspaper, though it satisfies many libeled persons and causes them to decide against filing suit. IT a libel suit is filed, the retraction may help reduce the damages awarded by
indicating lack of actual malice.