Libel and Privacy
Elements of a libel case
Defenses to libel
Standards and guidelines
Intentional infliction of emotional distress
The legal technicalities of libel and privacy undergo frequent revision. The reporter should be aware of these changes. This section only addresses the topic generally.
Defamation occurs when one's words reflect negatively upon another person's integrity, character, good name and standing in the community and those words tend to expose the other person to public hatred, contempt or disgrace. Coots v. Payton, 280 S.W.2d 47, 53 (Mo. 1955). Defamation includes both libel and slander.
A. "Slander" is defined as the speaking of defamatory words.
B. "Libel" is a defamatory publication expressed in either printing or writing or by signs or pictures. Broadcasting is considered libel because of the widespread dissemination of the defamation.
Elements of a Libel Case.
A. The libeled plaintiff must show that defamatory statements were "of and concerning" the plaintiff. Thus, an article stating that three of seven witnesses in a trial would be charged with perjury did not libel the plaintiff although he was one of the seven named witnesses. Kenworth v. Journal Co., 93 S.W. 882 (Mo.App. 1902).
B. The libeled plaintiff must show a false statement of fact. Opinions, even those that are false or insincere, are constitutionally protected by the First Amendment. In determining whether words are fact or opinion, courts examine the totality of the circumstances in which the statements were made, particularly the following: (1) the common usage or meaning of the alleged defamatory statement; (2) the statement's objective verifiability; (3) the literary context of the statement; and (4) the broad or social context in which the statement appears. Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984).
C. The allegedly libelous statement must be sufficiently precise in its terms to have reasonably defamed the plaintiff. Thus, statements that are ambiguous, vague or subject to an "innocent construction" are not libelous.
D. The Supreme Court of the United States' decision in New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny, require that a statement of and concerning a "public official" or a "public figure" must be made with actual malice in order for the plaintiff to prevail in a libel action.
1. "Actual malice" means making a statement with knowledge that it is false or with reckless disregard of whether it is false. It does not mean hatred or ill-will in the ordinary sense.
2. Public figures are persons who have attained general fame or notoriety in a community or who are involved extensively in society's affairs.
3. Persons who become involved in public controversies or thrust themselves into the forefront of public issues, even if only for brief periods, may be considered "public figures" for purposes of news reports regarding those controversies or issues.
4. The burden is on the public official or public figure to show that the media printed the allegedly libelous statement with actual malice.
Defenses to Libel.
A. Truth. Truth is the best defense (as well as being the basis for good, careful reporting and editing). Truth, however, is often difficult to prove in court.
B. Common law privilege. The news media are conditionally privileged to report most governmental events without fear of libel, so long as the reports are full, fair and accurate. Thus, for example, reporting the actions and statements of legislators, judicial personnel, or other public officials and executives while performing their official duties usually is privileged. Pulliam v. Bond, 406 S.W.2d 635 (Mo. 1966). The same privilege attaches to reports of information contained in pleadings and other court-filed documents, so long as the reports are full, fair and accurate.
C. Statutory privileges. Section 537.105, RSMo 2004, protects the republication of any statement broadcast over television and radio airwaves by or on behalf of any candidate for public office, so long as the statement is not subject to censorship or control by reason of statutes, rulings or order of the Federal Communications Commission or other federal authority.
Standards and Guidelines.
Missouri does not have a legal standard or exact guideline regarding the liability of a publisher or broadcaster for a defamatory, false statement concerning a private person.
A. The Supreme Court of the United States has said that states may set their own standards of liability with respect to libel of private persons, but the standards cannot impose liability without fault.
B. About one-half of the states impose liability on a showing of negligence in the publishing or broadcasting of defamatory material. At least six other states require a showing of actual malice, at least in some circumstances.
C. In Missouri, a private figure must show the libelous statements were published by a defendant "at fault." The cases do not define what is meant by "at fault."
D. A plaintiff must always prove that the defamatory conduct damaged him.
There are four ways in which a person's right to privacy may be invaded by the media without meeting the requirements of a defamation action.
A. Putting the plaintiff in a false light. This privacy action is similar in most respects to a defamation action except that the plaintiff need not show that the statement harmed his or her reputation.
1. The publicity must be highly offensive to a reasonable person, and the publisher must have knowledge or act in reckless disregard of its falsity.
2. Missouri cases suggest that false light will not lie where the publication concerns a matter of legitimate public interest.
B. Intrusion into the plaintiff's physical solitude. This privacy action involves a physical or other tangible intrusion into a private property area.
1. Consent often is raised as a defense to this privacy action.
2. Trespass upon private property may expose a reporter to criminal liability.
C. Publication of embarrassing private facts. This action involves a publication of true information about private affairs where the publication is offensive to a person of ordinary sensibilities.
1. The Supreme Court of the United States has held that the privileges applicable to defamation also apply to this privacy action. Thus, there is no liability for truthfully publishing information released to the public in official court records, Cox Broadcasting v. Cohn, 420 U.S. 469 (1975). See also Florida Star v. B.J.F., 109 S.Ct. 2603 (1989).
2. Newsworthiness often is raised as a defense to this privacy action. Most courts have held that, in order to be actionable, the statements must encompass a matter that is not of public concern.
3. A Missouri appellate court has held that a newspaper may be liable for negligence for publishing the name and address of an abduction victim while her assailant was still at large. Hyde v. City of Columbia, 637 S.W.2d 251 (Mo.App. 1982), cert. denied, 459 U.S. 1226 (1983).
D. The appropriation of another's name or likeness for commercial or trade purposes. This action arises when a person's name or photograph is appropriated for use in advertising or sales without the person's consent.
Intentional Infliction of Emotional Distress.
A. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court of the United States rejected an attempt to impose liability upon the media for intentional infliction of emotional distress, a traditional tort theory. The Court found that, regardless of the legal theory, it was incumbent upon the plaintiff to show that a false statement of fact concerning the plaintiff, who was a public figure, was made with actual malice. Absent a showing of actual malice, the defendant magazine could not be held liable for its parody of the plaintiff. The Court concluded that although the parody may have been sufficiently outrageous for purposes of typical tort liability, it could not say that the statements were made with actual malice.
B. In Missouri, a claim for Intentional Infliction of Emotional Distress, a.k.a. “IIED,” is typically a difficult claim to make for a variety of legal and practical reasons. For instance, recovery for emotional damages is usually available via other claims.