logo SPLC

THE PIHF CHECKLIST

There are four elements a person must establish in order to prove he or she has been defamed: (1) Publication, (2) Identification, (3) Harm and (4) Fault. Each of the four elements must be proven. For example, even if a story you have written meets the publication, harm and fault elements, a libel claim will still fail if you have not identified the claimant.

I. Publication

• A statement is "published" if it is communicated to someone other than the person whom the statement is about.
• Publication can take many forms and does not simply mean that the statement has been printed in a newspaper or other document. For example, a defamatory statement's presence on a computer screen in the newsroom where it is read by other students could constitute publication.

II. Identification

A statement "identifies" a person if it is shown that it is "of and concerning" that person.

Disguising a Subject's Identity
Where you successfully omit or alter a subject's identity, they cannot successfully sue you for libel. Care should be taken that: (1) the subject's identity has been disguised enough so that no one can reasonably make an identification and (2) the disguised subject does not resemble some third party who would then have cause for complaint. Every story should clearly state what facts have been altered.

Group Libel
Individuals can be defamed; groups of people cannot be. The key question is whether a statement about a group can reasonably be interpreted to refer to a specific individual in the group. While there is no hard rule, several courts have indicated that individual members of a group larger than 25 will have a difficult time proving that they have suffered individual harm. On the other hand, individuals in a smaller group may be able to claim that their reputation has been damaged. For example, the generic statement, "the tennis team is being investigated for substance abuse" could subject a publication to a libel suit if the team consists of just 12 members.

Corporation or Entity Libel
Corporations and other business entities, including private schools and religious organizations, can be defamed. Like individuals, their reputations affect their ability to conduct their affairs in a community.

III. Harm

A statement is harmful if it seriously shames, ridicules, disgraces or injures a person's reputation or causes others to do so. Statements that are mildly embarrassing or merely confusing or inacurate will not meet the "harm" test.

The following are examples of "Red Flag" statements that could cause significant harm to a person's reputation; extra caution is advised:

• Statements regarding improper sexual conduct. (For example, printing that an unmarried student is pregnant.)
• Statements that associate someone with a vile disease.
• Statements that accuse someone of illegal behavior.
• Statements that hurt someone's livelihood.
• Statements that allege racial or religious bigotry.

IV. Fault

In order to be "at fault" in publishing a statement, the person suing must prove that the reporter either did something they should not have done or that they failed to do something that they should have done. If the reporter did everything a "reasonable reporter" should have done to verify the information in his or her story before publishing it - for example, talked to all sides, obtained and read all relevant documents, took accurate notes, etc. - the reporter is not legally "at fault."

People suing for libel who are either public officials or public figures will often have to prove a higher level of fault than an ordinary person.

The Public Official/Public Figure Standard

New York Times Company v. Sullivan, 376 U.S. 254 (1964).
In order for a public official or a public figure to prove defamation, they must prove actual malice. Actual malice requires that the person suing prove that the challenged statement was published by those who either knew it was false or were reckless in verifying its accuracy.

Who is a Public Official?
The Supreme Court has said that a public official is one who, at the very least, has or appears to the public to have, a substantial responsibility for or control over governmental affairs.

Who is a Public Figure? There are two categories:
(1) General Purpose Public Figure: a "celebrity," whose pervasive fame or notoriety has made his or her name a "household word."
(2) Limited Purpose Public Figure: someone who has voluntarily assumed a leading role in a particular public controversy.

Standard for Private Persons (everyone else)

In most states, a private person need only prove that a reporter was negligent, that is, that the reporter made a mistake - perhaps an innocent one - that a "reasonable" reporter should not have made.

SPLC HINT: Don't get bogged down trying to decide whether your subject is a public or private figure. That is a game best left to media lawyers. As a practical matter, it is safest to assume that every one of your subjects is a private person and that you will be held to the lowest fault standard if you publish inaccurate information. Remember, if you do everything a reasonable reporter would do for every story that you publish you will never be successfully sued for libel.

DEFENSES TO LIBEL CLAIMS

If a libel plaintiff proves each of the four PIHF elements, the burden then shifts to the publication to offer one of the following defenses:

(1) Consent

A person who consents to the media's use of a libelous statement about him cannot later sue if the statement does, in fact, injure his or her reputation. Note that special issues can arise when dealing with a younger person's ability to provide valid consent. (See discussion at: SPLC Legal Brief: Invasion of Privacy.)

(2) Truth

Truth, while it must still be proven, is an absolute defense to libel. In many cases involving media defendants the burden is actually on the person suing - not on the publication - to prove the falsity of specific statements.

(3) Privilege

Subject to several requirements, which may vary by state, the media is protected from liability when they publish fair and accurate accounts of official public proceedings and reports even if the information reported later turns out to be false. For example, if a police report states that "Jack Smith was arrested" and a newspaper accurately reports the information, the newspaper will not be held liable even if it is later revealed that police actually arrested Jack Brown and officers made a mistake when they wrote down his name. To qualify for the privilege:

• The information must be obtained from a record or proceeding recognized by the state as "official".
• The media report must be fair and accurate. A "fair" report is one that is balanced and presented in context.
• The source of the statement should be clearly noted in the media report.

Other privileges exist, but vary from jurisdiction to jurisdiction.

(4) Opinion Versus Fact

Statements of pure opinion cannot be libelous. However, simply leading off an article with "In my opinion...", publishing something on the opinion page or using the word "alleged" provides no automatic protection from a libel charge. The test is whether the expression is capable of being proven true or false. Pure opinions, by their very nature, cannot be proven true or false. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)

Satire and Cartoons
If a statement cannot reasonably be interpreted by readers to be one of express or implied fact, it cannot be libelous. In Walko v. Kean College of New Jersey, 561 A.2d 680 (N.J. Super.L. 1988) a case involving an ad that associated a college assistant dean with a telephone sex service, the court stated that "A parody or spoof that no reasonable person would read as a factual statement, or as anything other than a joke - albeit a bad joke - cannot be actionable as a defamation."