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Mass Media Law, 13/e
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Libel: Proof of Fault

Chapter Overview

Public Persons Versus Private Persons:

Under the fault requirement all persons who sue a mass medium for libel must prove that the defendant was somehow at fault in publishing the defamatory material, that the publication (or broadcast) did not result from an innocent error. Private persons generally need prove only negligence. What the courts call a "public person" must normally prove that the defendant acted with actual malice in publishing the libel; that is, the defendant knew the material was false but still published it or exhibited reckless disregard for the truth. What the courts define as "private persons" must prove at least that the defendant acted negligently, that is, in such a way as to create an unreasonable risk of harm. The courts have ruled that there are three kinds of "public persons":

  1. Public officials: Persons who work for a government in a position of authority, who have substantial control over the conduct of governmental affairs, and whose position in government invites independent public scrutiny beyond the general public interest in the qualifications and performance of all government employees. Libelous comments must focus on the plaintiff's official conduct (the manner in which the plaintiff conducts his or her job) or on the plaintiff's general fitness to hold public office.
  2. All-purpose public figures: Persons who occupy persuasive power and influence in the nation or in a community, persons who are usually exposed to constant media attention.
  3. Limited-purpose public figures: Persons who voluntarily inject themselves into an important public controversy in order to influence public opinion regarding the resolution of that controversy. The key elements are:
  1. Public controversy, the resolution of which must affect more persons than simply the participants. The outcome must have an impact on people in a community.
  2. Plaintiffs who voluntarily thrust themselves into this controversy. An individual who has been drawn involuntarily into a controversy created by someone else (such as the press) is not a limited-purpose public figure.
  3. Plaintiffs who attempt to influence the outcome of the controversy, to shape public opinion on the subject. This implies that a plaintiff has some access to the mass media to participate in the public discussion surrounding the controversy.

Using a variety of criteria, courts have ruled that businesses can be deemed public figures in a libel suit. Persons who become public persons remain public persons throughout their lives with regard to stories published or broadcast that relate to incidents or events that occurred while they were public persons.

The Meaning of Fault:

In a lawsuit against a mass medium, a private person must prove that the defendant was at least negligent in publishing the defamatory matter. Negligence has been defined as the failure to exercise reasonable care or as acting in such a way as to create a substantial risk of harm. In some states, in certain cases private persons will be required to prove more than simple negligence. They may be required to prove gross negligence, which is a standard that implies a greater degree of carelessness on the part of the defendant. An individual who has been declared to be a public person for the purposes of a libel suit must prove actual malice. Actual malice is defined as knowledge of falsity or reckless disregard of the truth. Transmitting a story with the knowledge of its falsity means that the publishers of the story knew it was not true but still communicated it to the public. To prove reckless disregard for the truth, the plaintiff must show that the publisher of the defamation had a "high degree of awareness of the probable falsity of the material" when it was published or that the publisher in fact "entertained serious doubts about the truth of the material" before it was published. The courts have established a set of three criteria to help determine whether material was published with reckless disregard for the truth. The jurists tend to look at these factors:

  1. Whether there was time to investigate the story or whether the material had to be published quickly
  2. Whether the source of the information appeared to be reliable and trustworthy
  3. Whether the story itself sounded probable or farfetched

If the item was hot news, if the source was a trained journalist, and if the information in the story sounded probable, there can be no finding of reckless disregard. However, if there was plenty of time to investigate, if the source of the material was questionable, or if the information in the story sounded completely improbable, courts are more likely to permit a finding of reckless disregard for the truth.