PUBLISHED JULY 2012
by Steve Gillen, Partner, Wood Herron & Evans –
Minimizing Libel Risks: Part 2, Issues You Might Not Expect
In the United States, the First Amendment gives book publishers great freedom in formulating and presenting messages. But this freedom has some limits. It is bounded, for example, by an obligation to be careful with the facts. And, if you consider the recent history of U.S. libel litigation, it appears that book publishers have been generally better about this than their counterparts in other media.
We know that partly because the Media Law Resource Center collects and analyzes trials and verdicts involving the defense of media companies’ First Amendment rights. A professional association of media companies and their lawyers, MLRC has examined nearly 600 trial verdicts from more than three decades, and the conclusions it has drawn are enlightening.
Patterns in Libel Litigation
Across all forms of media, media companies lose at trial in approximately 60 percent of the cases, but many unfavorable judgments are subsequently reversed or reduced so that the plaintiffs hold onto their entire award in only about 20 percent of the cases. Apparently, juries are overly sympathetic to plaintiffs whose reputations have been sullied, but trial judges and appellate courts moderate this bias.
The vast majority of the cases that go all the way through trial to verdict involve newspapers; a much smaller number involve magazines; very few involve books (less than 5 percent of all print media cases in the MLRC study); and in all three categories the number of cases has steadily decreased over the past 30 years. That newspapers are the most frequent targets makes intuitive sense—the newsworthy topics they cover are more likely to provoke an angry response, and the time from discovery to publication is shorter than that for magazines or books, allowing less opportunity for fact-checking.
But simple economics may also be driving this pattern. A newspaper defending against a libel claim is essentially defending its ability to report the news; it’s defending its entire business. A book publisher, on the other hand, is more often protecting its right to continue distribution of a single title, and settling early may make sense because the profit to be made on a single book would not justify the cost and risk of a libel trial.
That cost would almost certainly be into six figures. MLRC reports that the median award is $100K, with 45 percent of the cases resulting in verdicts north of a million dollars in the last couple of years. Even when a publisher has a media perils insurance policy, the deductible would probably require it to bear the first $50K–$100K of expense. And of course any settlement is likely to involve payment, which may well be sizable.
For these reasons and others, it is clearly better to invest resources in minimizing the risks of libel suits than in defending against them.
What follows provides basic information that should help you avoid libel claims; the next installment of this series will discuss additional libel issues, some of which are just emerging.
The Elements of a Libel Claim
Libel is defined as defamation in written or other recorded form, with defamation an umbrella term meaning false allegations that damage a person’s reputation and encompassing both libel and slander. (Since slander concerns oral and otherwise transitory statements, it is less often at issue for book publishers.)
The law of defamation in the United States is primarily state-based, so the technical elements of a defamation claim vary from state to state. Generally speaking, however, to recover on a defamation claim, a plaintiff must establish each and every one of the following:
- an unprivileged publication (“privileged” statements—reports of statements taken from a judicial proceeding, for example—get special latitude)
- of a defamatory statement of fact
- that is false,
- that is of and concerning the plaintiff,
- that causes damage to the plaintiff’s reputation, and
- that is made with the requisite degree of fault (at least negligence)
Eliminate any one of these six elements, and a libel claim fails.
Publication occurs if at least one other person besides the plaintiff reads a defamatory statement. When a book is distributed for sale to the public at large, whether in print or in e-book form, the “publication” element is satisfied.
A defamatory statement is one that has any tendency to injure an individual or entity in their trade or profession, that has a tendency to lower their reputation in the community, or that exposes them to public scorn, contempt, or ridicule.
A false statement is one that is not substantially true. Most courts do not require 100 percent accuracy but do require that the gist of the statement be true. A materially true statement cannot give rise to a defamation action; the law of defamation is designed to address only false statements affecting the reputation of a person or entity.
Note that, when dealing with falsity, a court will not dismiss a defamation action simply because a statement is literally true if it is not also substantively true. You can’t shift responsibility for a defamation claim by properly attributing it to another source—“According to John Doe, Jane Doe is an alcoholic,” for example. Even when John Doe in fact made the statement, you can be found liable if the truth is that Jane Doe is not an alcoholic. So all statements—direct and indirect—that might be viewed as defamatory should be fact-checked prior to publication.
A statement of fact is fairly self-explanatory: only factual, or allegedly factual, statements can form the basis of a defamation action. A fact is something that is or could be verified. Statements of pure opinion generally cannot give rise to a defamation action. In determining whether a statement is fact or opinion, courts typically ask four questions:
- Is the statement capable of being proved true or false?
- What is the journalistic context of the statement? Is it made as part of a fictional account or in a work of commentary, or is it found in a nonfiction work or an expose?
- What is the social context of the statement? Is it being made as part of a political debate?
- What is the ordinary meaning of the words used in the statement?
The “of and concerning” element of a defamation claim requires that any statement alleged to be defamatory be about an identifiable plaintiff. This means that someone other than the plaintiff must be able to identify the plaintiff as the subject of the statement—it is not enough that the plaintiff alone can tell.
Fictionalizing or disguising the name of the subject will not eliminate your exposure if the subject is nonetheless identifiable from the facts and circumstances otherwise disclosed. Remember that a person may be identified in many ways, including by name, nickname, photograph, job title, address, and so on. And it is not necessary that you be able to recognize the subject from what is disclosed in a book; if just one other person can, a libel claim may be upheld.
As for damage a plaintiff has suffered as a result of the publication of any allegedly defamatory statement, in some circumstances, damages are presumed. We call this libel per se, and accusation of a crime is one example. In other circumstances, the plaintiff must be able to prove that, in fact, his, her or its reputation was harmed by a publication.
Objective indications of this type of damage include testimony from former colleagues and/or friends that they now think less of the plaintiff as a direct result of the publication; evidence that the plaintiff was terminated from a job as a result of the publication; evidence that the plaintiff is unable to secure business or employment as a result of the publication; and similar evidence showing that the plaintiff’s standing in the community has been affected by the publication or that the plaintiff is being ostracized or shunned.
In addition to compensation for injury to reputation, a plaintiff who produces sufficient evidence is also entitled to damages for humiliation suffered and emotional distress.
A Closer Look at Fault
About the sixth element required to support a libel claim—fault—the law does not require perfection. Ideally, from an ethical and a business standpoint, you should make sure all facts in a book are substantially true. But all the law of libel requires is that you make sure that you have taken appropriate care to check the facts; even if they then turn out to have been wrong, you will have reduced or eliminated the risk of a bad result in a libel action.
The First Amendment has been interpreted to require at least a showing of negligence where the subject of the alleged libel is a private figure. However, if the subject is a public figure or public official, the First Amendment imposes a heavier burden on the plaintiff for establishing defamation, in deference to the public’s interest in free and open discourse about controversial and newsworthy subjects. Nearly all movie, television, music, and sports celebrities will be considered public figures in the eyes of the law.
There are two types of public figures: (1) general-purpose public figures and (2) limited-purpose public figures. A general-purpose public figure is one who has achieved general fame or notoriety. A limited-purpose public figure is one who has entered a particular public debate in an effort to affect the outcome.
In a libel suit involving a book, a public figure or public official plaintiff must establish that the publisher acted with “actual malice” by publishing the statements at issue with knowledge of their falsity, or with reckless disregard as to their truth or falsity. What constitutes reckless disregard varies with the circumstances of each case.
To minimize the risks of libel actions:
- Check and recheck facts. The process doesn’t have to result in perfection, but you can’t be sloppy or careless or negligent. You need to do enough research and investigation into statements you are going to publish to be convinced of the truth of those statements.
- Look for corroboration of allegations made by individuals quoted in the book. Whether one corroborative source is enough will depend on the severity of the allegation and the credibility of the source; statements by former spouses and discharged employees, for example, should be regarded skeptically. Remember that an accurate quotation does not absolve you of liability, although separate privileges may be applicable to the accurate recitation of facts set forth or statements made in court documents and legislative and judicial proceedings, at least where the outcome is fairly reported.
- Remember that you can’t safely publish a statement just because it was published before by somebody else. Each time a defamatory statement is published, it can create a whole new cause of action. So you need to investigate the truth of all published statements, even the ones you can attribute to some other source.
- Don’t willfully disregard important facts, witnesses, or documents that may contradict the picture a book aims to create for readers. In one of the cases included in the MLRC study, a Baltimore paper reported that a man was a federal fugitive, basing that statement on an interview with the man’s son. The man denied the allegation, but the paper ignored the denial and ran the story anyway. A jury awarded the man $350,000 in compensatory damages.
- Be extremely careful when publishing factual statements involving private individuals. Unlike public figures, private figures generally need to establish only that you were negligent in publishing a false statement about them—not that you acted with actual malice. This lower standard requires increased care.
- Avoid exaggerated or sensationalized facts. At some point they may actually change the meaning of an otherwise true statement and make it false.
- Make sure titles, subtitles, chapter titles, headings, and captions match—and do not go further than—what is said in the related text. In other words, check them too with libel risks in mind.
- Also check positioning of artwork, including stock photos, to make sure juxtapositions don’t suggest something defamatory. If you use a stock photo of a man and woman walking and talking together to illustrate a chapter about sexual harassment, for example, the implication that the man in the photo is harassing the woman is false and defamatory.
- Check all statements of facts, not just the obviously unflattering ones, bearing in mind that seemingly innocuous statements can conflict with important personal or professional positions. For example, one case in the MLRC study involves a college professor who was identified as the author of a professional book, when in fact he had ceased to be involved several editions earlier and the current edition was riddled with errors. Naming an author as an author would not normally throw up red flags, but in this case the embarrassed author was awarded more than $2.5 million.
- Consider trying to get a depiction release. When that is feasible—as it obviously is not for an expose, a tell-all memoir, or an unauthorized biography—consider asking a person or people covered in a book to sign an agreement, sometimes called a depiction release, that provides for access and cooperation and releases privacy and defamation claims. This can go a long way toward solving potential problems.
Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans, and has focused his practice on publishing and media matters for 35 years. He can be reached at firstname.lastname@example.org.