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Com Law Notes

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Syracuse University
COM 400

COM LAW NOTES Defamation and Libel Civil V.Criminal trials • Civil: a person vs. a person, crime, not brought upon by state, found responsible, fine, preponderance of the evidence • Criminal: crime or felonies and prosecuted, state vs. person, found guilt, fine/jail, guilt beyond reasonable doubt Which communications professionals should be concerned about defamation? • Anything written (letter or memo) can be accused Defamation: The publication of material that would tend to hold with hatred, ridicule, contend or spite (hurts someone reputation). If it is said it is SLANDER if it is written it is LIBEL. • Relates to? o Relationships o Publicity Defamation is an issue in ALL media How does defamation affect advertisers? • Can defame a product o Oprah and Cattleman’s BeefAssociation ▯ “makes you never want to eat a hamburger again” • Memos • Presentations • Conversations Litigation PR • Persuasive communications for your client who is in a lawsuit • Defend a client who has been defamed by news article Source of Defamation law: • Common law – case law • Statutory – state law (many version) • “Constitutionalized” with a national standard for public officials To win, Plaintiff must prove: (F2LI2P) • Publication ▯ communicated in any form (spoken, written, broadcast, etc.) • The statement is false ▯ not true statement • Language that’s defamatory ▯ “words that tend to damage a person’s standing in a community” • Fault of the speaker (the hardest one to prove) • Identification of the person/company ▯ does not have to be named, just described • Damage/Harm ▯ you have to prove that the person was harmed in some way o Emotional, physical, economic (need to recover somehow) o Vary state by state  Compensation for loss  Punitive: to punish and send a warning to others You are liable for any REPUBLICATION of defamation. Group libel (most states) – plaintiff must be in a group of ~20 to prove he/she was identified SPEAKERAT7 PM ON THURSDAY ▯ write-up of 200-300 words Fault determines negligence or recklessness • Complex proof • Judge determines type of plaintiff • Law determines standards of New York = Gross Irresponsibility (wrong in book on page 114) NYT advertisement “Heed Their Rising Voices” versus Sullivan (most significant defamation case) • Lies in the article in favor of MLK but against public officials • Critical of the police and especially Chief Police, Sullivan • Sullivan wins, astronomical fine on NYT • KNEW OR SHOULD HAVE KNOWN • Actual malice • D knew it was false OR • D recklessly disregarded truth or falsity of information o D have serious doubts? o D should have had serious doubts? Why make it harder for a public official? • Want robust debate and criticism of politician • Politicians have access to media to rebut the libel • If citizen fear big monetary damages, they wont criticize government officials (DEMOCRACY) Normal citizen gets the most rights when it comes to defamation; more than public officials and celebrities ACTUAL MALICE: Who is a public official? Any elected official, person with major public policy role, health or welfare Public figure: well-known person, influences culture or society, has access to the media • All purpose – Jay Leno, Michael Jackson (everyone knows them) • Limited purpose – Jim Boeheim (segmented audience) o Topic o Geography o “thrust themselves to the forefront of particulate controversies in order to influence the resolution of issues involved” (Gertz) Check the state standard for everyone else (private person) • Negligence • Gross irresponsibility • Other Negligence: “Failure to follow accepted professional practices or standards” (Wat Hopkins) Defendant can still win with affirmative defenses • Even if P proves all the elements o Fair report privilege  Qualified – defamers use of privilege is conditional on accurate reports (sometimes called reporters privilege)  Fair report for official proceedings  Legislative, executive, judicial o Fair comment and criticism  Reviews and critiques  Must be matter of widespread public interest • Public issue, cultural activity, sale of consumer goods o Opinion  Statement of belief that cannot be proved true or false  Ollman Test • Milkovich – can’t couch a fact within an opinion PR – protecting you client’s reputation Behavioral advertising – privacy or contract law might limit your marketing/tracking/targeting Legal Issues: How much privacy should government protect? • Freedom of thought • Control over one’s body • Solitude in one’s home • Protection from embarrassment • Control over personal information • Freedom from surveillance • Protection from searches and interrogations History: Warren and Brandeis decided there should be a right to privacy (1890’s) Rochester woman sues; NY Court says no right to your likeness, causes public outcry (1902) • No law for mental anguish • States pass laws for this soon after Prosser synthesis law into 4 topics (1960) ▯ not all states recognize all 4 1. Disclosure of embarrassing private facts about individuals - the publication of private information that would be highly offensive to a reasonable person and is not a matter of legitimate public concern 2. Intrusion, the physical or technological violation of an individual’s privacy 3. False light, the intentional dissemination of highly offensive false publicity about another 4. Appropriation, or the use of another persons likeness without permission *Not all states recognize all 4 New York – doesn’t recognize false light, private facts, or right of publicity but they have Commercialization (NY Civil Rights Law) Privacy law was: • State law • Common law over time • Constitutional (not listed specifically) o 4 Amendment on search and seizure th o 5 Amendment right to due process o Also 3 and 9 th Defenses: st • 1 Amendment ▯ public occurrences (in public view) • Public Records – okay to publish information from court documents, even sex assault victim name (Cox v Cohen), okay to publish legally obtained inform (sexual assault victim name mistakenly given out by cops [Florida Star v BJF] and juvenile name lawfully obtained [Smith v Daily Mail]) • Newsworthiness • Consent o Written out o Name of parties o Signatures o Dates o Scope – who can use (successors), where can be used, type of media, when can be used  NOT NEEDED FOR NEWS BUTALWAYS GET FORADVAND PR Defamation: Hurst reputation Only one person must hear False Private Facts: Hurts feelings Wide dissemination True Intrusion: • The highly offensive invasion of another person’s solitude, either physically or by use of technological devices. Taping • Never tape 3 parties secretly • If participant records, check state law o NY IS ONE PARTY CONSENT • Not for broadcast, it’s okay (FCC: need permission and recoding without notice) Camera • Face to face? Presumed consent Appropriation or Commercialization • Defined • Protects dignity and personal privacy • Not recognized in all states o NY Law: use a person’s name, portrait or picture without consent for “advertising purposed or for the purposes of trade” • Right of Publicity – either of celebrities to make money of their names, pictures or voice, etc. (recognized in 20 states) Defenses • Newsworthin
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