The Libel Procedure
As with any other legal action, definite steps are involved in the determination of whether a matter is libelous. People who work in news need some kind of method to look at potentially dangerous material to determine if a libelous situation exists.
Most questions can be resolved so that reporters and editors know whether something is libelous or not by following three steps or asking three questions. They are:
1.Is the material defamatory?
Because something is defamatory doesn’t mean that automatically it shouldn’t be published. The news media must every day use defamatory information. To state that someone is charged with a criminal offense is defamatory. To say that someone is the defendant in a civil suit is defamatory. To say that someone declares bankruptcy is defamatory.
Publishing anything that would cast a person in a negative light is defamatory. This concept is so important that anyone dealing with information must grasp this as the beginning point in understanding libel. Understanding what defamation is is the first step.
We are not talking about defenses here. That comes later. Reporters and editors must be able to recognize that any derogatory statement can be defamatory.
2.Is it actionable?
If the information is not defamatory, no cause exists for alarm. If it is defamatory or may be defamatory, then the process can be taken to the next step: Is it actionable?
By actionable is meant whether the judge in whose court a libel suit is filed decides the petition merits or justifies a trial, or the beginning of the trial procedure.
When ample precedent is available, the question of actionability becomes clear-cut. For example, suppose a previous case similar to this went to trial. That indicates certain actionability.
Unless we have reason to believe that the courts will uphold a right to publish material of this nature, chances are that we are dealing with a situation that may very well proceed to trial.
If that’s the case, we have the potential of a libel action on our hands.
3.Is it defensible?
Closely tied to actionability is defensibility. If a good defense is available, obviously a petition wouldn’t get very far.
Recognizing potentially dangerous situation requires a systematic way of looking at the information. Knowing what defamation is is essential to understanding liability.
Journalists don’t have a legal problem when the defamation is published and one or more defenses are available.
For example, the person named in a criminal complaint won’t be able to sue successfully if indeed he or she was named in a complaint and that can be verified. The statement was still defamatory. But it wasn’t actionable because it was defensible.
To have a successful libel action, the plaintiff would have to have a case in which defamation was published in the absence of defense.
For an action to be initiated by a plaintiff against a defendant publisher, these conditions must be met:
1.The defamation must be published and/or communicated.
2.Someone must be identified.
Publication is not limited to printed materials. Publication means broadcast, drawn, said, filmed or sky written. The question of publication and communication are closely related. A Texas court of civil appeals ruled in an action brought against a newspaper: “It is not necessary to prove that the article was read as that can be presumed.”
Communication means that the defamation was read, heard or seen by someone. If the defamation is published and hidden, obviously a libel action won’t result because no one knows about the defamation. It’s like the tree falling in the forest. In Texas no distinction is made between what was said and what was communicated in any other form. The libel concept encompasses oral expression. Some people refer to what was said orally as slander, but no separate basis of slander exists in Texas.
Identification can be the tricky part.
Many neophyte newspersons mistakenly believe that if no name is used identification is impossible. Names may or may not be essential to identification. For example, suppose two Joe Doakes live in the town and a story about Joe Doakes being charged with murder doesn’t distinguish which Joe Doakes. The other Joe Doakes may have cause of action. He has obviously been defamed. Such general synonyms for identification as “a 30-year-old plumber” may be sufficient for someone to determine the name. In Fort Worth a rape victim came forward and claimed she had been identified after only a sketchy newspaper description.
Or, the general public may believe that the synonyms refer to a certain person who is not involved in any way. That’s identification, or misidentification, which is just as bad.
Any words are defamatory that:
•Attack a person’s reputation, such as a charge of crime, fraud, dishonesty, immorality or dishonorable conduct.
•Expose a person to public ridicule or scorn and deprive him or her of their right to enjoy normal social contacts.
•Prejudice one in his business, profession or trade.
The defamation may be made directly or indirectly, intentionally or accidentally.
The area of concern is so broad that any statement that produces an ill opinion of a person is defamatory and may be the cause of a libel action.
. . . And Explanation
Perhaps the greatest misconception in handling defamatory statements is the belief by uninformed newspeople that if they are quoting someone else or attributing the statements to someone else the news media are not responsible.
That isn’t true. If defamatory statements are made, anyone who is a party to the publication and communication may be responsible in that they may be named defendants in a libel action.
Another misconception is that if the defamation occurred by accident the damage is less than if the defamation was published intentionally. News media are entrusted with the responsibility of getting things right. Why they didn’t is not the basic issue in a libel action.
Defenses in libel actions are known as affirmative defenses. The plaintiff introduces the defamatory statement and shows the damage caused. The defendant must present whatever defense will help mitigate or clear himself or herself.