"Truth"
is an
absolute defense to a defamation claim.
But keep in mind that the truth may be
difficult and expensive to prove if you are
named as a Defendant.
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OPINIONS
are protected Free Speech under the
First Amendment!
Note: merely labeling a statement as your
"opinion" does not always make it so.
For example is a speaker says: "In my
opinion you have AIDS" although the
speaker prefaced the statement by saying it
was just an "opinion" if it can be
affirmatively proven that the subject of the
speech did not have AIDS, then the statement
is defamatory.
In deciding whether the statement is one of
fact, or opinion, the Courts often use the
"reasonable listener test" (meaning, would a
reasonable listener, given the context of
the communication, have concluded that the
speaker was asserting a statement of fact).
If so, the "opinion" becomes potentially
actionable as a defamatory statement of
fact.
The Law Offices of Steven C. Vondran EXCLUSIVE VIDEO:
TIPS ON AVOIDING DEFAMATION
(Coming Soon)
______________________________________________________________________________
THERE ARE TWO
FIRST AMENDMENT
CONSTITUTIONAL ISSUES
TO BE AWARE OF:
(1) THE
SPECIAL PROOF CHALLENGE WHEN SUING THE
MEDIA:
A
Plaintiff who wishes to sue a media
defendant for defamation (ex. suing the
radio station or newspaper company) must
show at least "negligence" on the part of
the media defendant in order to recover.
If the
Plaintiff happens to be a Public Figure /
Public Official (discussed below) then they
must prove "actual malice" on the
part of the media defendant.
ACTUAL
MALICE: Means you must show that
the media defendant had KNOWLEDGE of the
FALSITY of the statement, or that the media
defendant acted in RECKLESS DISREGARD for
ascertaining and reporting the truth.
This can be a tough challenge to overcome,
but is not insurmountable.
The Law Offices of Steven C. Vondran EXCLUSIVE VIDEO: IS
A WEB BLOG PUBLISHER A MEDIA DEFENDANT
ENTITLED TO THE "ACTUAL MALICE" STANDARD?
(2) THE
SPECIAL CHALLENGE OF A "PUBLIC FIGURE"
/ "PUBLIC OFFICIAL" PLAINTIFF:
Public Figure:
These are your sports stars, movie stars, tv
stars, and those who "thrust themselves
into a controversy."
Public Official:
These are your politicians, and elected
officials
THE PUBLIC HAS A LEGITIMATE RIGHT TO
COMMENT ON THE ACTIONS AND ACTIVITIES OF
PUBLIC FIGURES AND GOVERNMENT OFFICIALS.
THIS IS THE CORNERSTONE OF A FREE SOCIETY -
TO ENGAGE IN FREE AND OPEN DEBATE
WITH A FREE FLOW OF IDEAS. THIS IS THE
HEART AND SOUL OF THE FIRST AMENDMENT
TO THE UNITED STATES CONSTITUTION.
Consequently, the burden will be on your
attorney to prove the elements of "actual
malice" (cited above) if you are a public
figure or public official plaintiff.
_____________________________________________________________________________
SOME
OTHER GOOD DEFENSES FOR A
DEFENDANT IN A DEFAMATION LAWSUIT INVOLVING
EITHER LIBEL OR SLANDER
QUALIFIED IMMUNITIES ("Qualified"
means if the speaker abuses the
privilege - she loses the privilege).
There may be more or less defenses available
depending on the jurisdiction.
(1) Attorneys,
Judges, and Legislators, in the
course and scope of their duties, have a
qualified immunity
(2) Witnesses at a
trial also normally enjoy a qualified
immunity so that they may testify truthfully
(3) Politicians
in the course and scope of their legislative
duties while on the floor have a qualified
immunity
Note: The above
scenarios assume the comments and statements
made relate to the nature of the proceedings
________________________________________________________________________________________
RETRACTIONS
OF DEFAMATORY
STATEMENTS
MAY SERVE AS A
MITIGATING FACTOR
FOR THE DEFENDANT AND MAY
REDUCE THE AMOUNT OF DAMAGES AWARDED TO THE
PLAINTIFF
________________________________________________________________________________________
LIABILITY FOR REPUBLISHING
DEFAMATORY STATEMENTS
Generally, anyone who repeats
or republishes someone else's
statements is just as responsible for their
defamatory content as the original speaker
if they knew, or had reason to know, of the
defamation.
Note:
Internet Service Providers (ISP's) have
generally been granted immunity (per Section
230 of the Communications Decency Act) for
most all forms of defamation that occur on
websites hosted on their service. The
rationale for this is that it is impossible
for an ISP to verify the truthfulness of
every statement posted on a webpage or blog.
This is simply too cumbersome and
unrealistic.
______________________________________________________________________
THE LATEST
RAGE: MEDIA LIABILITY INSURANCE
Many insurance companies are now
offering media liability insurance policies
designed to cover online libel claims that
arises from distributors of information and
communication over the internet.
Premiums can vary greatly. Some
homeowner's insurance policies provide
protection against libel claims.
Major Insurers
offering Media Liability Insurance Coverage
_____________________________________________________________________________
.
NOT DEFAMATION - BUT STILL
LEGALLY ACTIONABLE
(1)
INVASION OF PRIVACY TORT -
PLACING PLAINTIFF IN A "FALSE LIGHT"
The tort
of "false
light" (invasion of privacy) occurs
where the publisher portrays something as
being factual, but which in reality creates
a false impression about the plaintiff.
For example, writing an autobiography about
a person but attributing to the subject
views or opinions the subject never actually
held or entertained.
Note: False
light claims are subject to the same constitutional protections discussed above.
(2) INVASION OF PRIVACY TORT -
"PUBLICATION OF PRIVATE FACTS"
To
establish a claim for the tort of Right to
Privacy Public Disclosure of Private Facts,
the Plaintiff must generally prove each of
the following:
(a) an
intentional public disclosure, (b) of a
private fact, (c) concerning the Plaintiff,
(d) that is not of legitimate public
concern, and (e) is highly objectionable to
a reasonable person (i.e. to a juror).
For this tort, TRUTH IS NOT A DEFENSE!!!
The key
is to prove the statement was highly
offensive to a reasonable person. This
is a factual question for the jury to
decide, assuming the case gets past summary
judgment.
______________________________________________________________
Defaming Goods and Services of a Company:
TRADE LIBEL
Trade libel is
defamation against the goods
or services of a company or business. For
example, saying that you found a dead roach
in a can of beans when such is not true.
if someone or another
company is disparaging or tarnishing your
goods, or services, or company brand or
trademarks, let us know. We can
structure flat rate fees or low hourly rates
depending upon the situation. Don't
let those with unscrupulous motives post
digital defamation on websites, blogs,
bulletin boards, in podcasts, and other
digital online places. Hire an
attorney to put a stop to it.
_____________________________________________________________________
DEFAMATION RESOURCES
MediaLaw Resource
Center
Major Insurers
offering Media Liability Insurance Coverage
__________________________________________________________________________________________
CALL
877-276-5084
IF YOUR BELIEVE
YOU CORPORATE GOOD NAME OR PERSONAL
REPUTATION IS BEING TARNISHED, DAMAGED, OR
INJURED, CONTACT US FOR A FREE CONSULTATION
or visit
The Law Offices of Steven C. Vondran on the web
at
www.VondranLaw.com
