Libel & Invasion of Privacy (cont.)

Note that advertorials may be treated differently.  They generally promote a message, not a product, even when they are published by a company that normally advertises its product. Such advertorials may be viewed as news or editorializing, but that doesn't mean you can't be sued.  It just means you are less likely to lose in the suit.

Private facts about a person may be the subject of suits in some states. There is broad divergence among state laws in this area.  Some say that a fact, once public, can never be private. Others, notably California, have said once-public facts may become private if sufficient time has passed without the fact being mentioned publicly. In all states that recognize such claims, the plaintiff must demonstrate that s/he worked to keep the information from the public.

What's public and what's private?  If it occurs in a public place its public. So if you are promoting the downtown business district and you shoot a photo of some stores and a couple walking by arm-in-arm there can be no claim against you, even if the two people are married but not to each other, or they are homosexuals who have never revealed their lifestyle to family members.

As I said earlier, false light is treated much like libel. If you publish statements which give readers a false impression of the person and that person's self esteem is injured you may be sued. Often false light claims accompany libel claims.  Fortunately, courts generally impose the same limitations on false light claims that they impose on libel.

Libel & Invasion of Privacy (cont.)

Privacy comes in four basic forms.

  • Intrusion is a physical entry into a private area -- rummaging through a woman's purse, peeping through the slit in curtains to see what's going on inside. The invasion of privacy is the act independent of any publication.
  • Publication of private or embarrassing facts may give rise to a suit.
  • Placing a person in a false light is another form. It is much like libel, but the person is claiming injury to self esteem, not reputation.
  • Misappropriation -- the use of a person's name or likeness without permission for commercial gain.

The last one, misappropriation, is obviously relevant to advertising. Private facts, false light mainly arise in the context of news coverage, but may become a problem for PR people. Misappropriation may become an issue for PR people as well.

Libel & Invasion of Privacy (cont.)

It is often said that truth is a complete defense to libel, but under our system, the person suing must prove falsity to make out a libel claim. Therefore, you need not prove the truth of your statements until the plaintiff has provided a sufficient amount of evidence that it was false. In many cases, proving truth or falsity is not a simple issue.

Fair and accurate reports of government proceedings and documents are usually privileged, but laws vary from state to state.  Members of Congress and state legislatures generally have privileges protecting them from libel claims for statements made in the chambers.  But, as former Sen. William Proxmire found out when he gave his famous "Golden Fleece" award, when you leave the halls of Congress and make public statements you lose the privilege.

Generally republication of a libel makes the republisher just as liable as the original speaker. However, as communicators, if you republish statements for which the original speaker could not have been sued, you have a privilege against suit.

For a statement to be libelous it must be "of and concerning" the person claiming to have been libeled. Therefore, if you make a comment that "the president of a local bank (not identified) is bankrupt" and there are only two local banks, one of the bankers can sue you for libel, claiming you impugned his business acumen. This concept, know as "group libel," generally only works if the group is smaller than 25 people.

Libel & Invasion of Privacy

Libel (written) and slander (spoken) are real problems for the news media, freelance journalists, public relations and advertising people, although the latter may have more risk of trade libel than the more traditional form of libel.  We'll talk about the generically as libel.

There are five elements that must be satisfied for there to be a libel: a false statement, that is published, that is of or concerning the person or entity claiming injury, that causes injury to that person or entity, and that is not privileged. People often talk about "defamation" as though it were a synonym for libel, but in reality, defamation is an injury to reputation. Thus, you can have a defamation by publication of true information and it would not be libelous.

Added to this, if the person is a public official or public figure s/he must prove "actual malice" to win any damages -- that the publisher knew the information was false or published in reckless disregard for the truth. If the person is a private figure, in most states s/he need only prove negligence to win damages -- that a reasonable speaker in similar circumstances would have know or found out the information was false and not published it. There are some people who are general-purpose public figures, often celebrities, because they have sought to make their names household words. Others are limited-purpose public figures who have thrust themselves into the limelight with regard to specific issues (i.e.leaders of the opposition to a school bond referendum). They may be treated as public figures when discussing the school bond referendum, but if you comment about their family lives they would only have to prove your error was the result of negligence.

The News Media and the Courts

Buenos Aires & LaPlata, Argentina, September 15 - 18, 1992. Designed and led series of seminars for judges, lawyers, journalists and law and journalism students as Argentina prepared for oral, public criminal trials. Sponsored by USIA’s U.S. Speakers Program. The Role of the Press in a Democratic Society — Montevideo, Uruguay, September 20 - 21, 1992. Designed and led seminar for judges and lawyers on issues such as censorship, libel, invasion of privacy, media coverage of the courts and protecting confidential sources. Sponsored by the U.S. Agency for International Development.