Chapter 4: Libel and Emotional Distress

Topic Overview:
This chapter discusses the conditions in which an individual is able to sue for libel and win in court. The plaintiff must prove that the defendant is at fault for publishing defaming material. It is important to note the distinction between parody and actual malice. Intentional Infliction of Emotional Distress test emphasizes that the defendants intentional or reckless actions involved actual malice that caused severe emotional distress.

Defining Key Terms:

• Damages: Monetary compensation that may be recovered in court by any person who has suffered loss or injury.
• Sedition Act of 1798: Made it a crime to write "any false, scandalous and malicious" statements against either the president or congress. (The act expired in 1801)
• Burden of Proof: The requirement for a party to a case to demonstrate one or more claims by the presentation of evidence. (In libel law, the plaintiff has the burden of proof.)
• Communications Decency Act: The part of the 1996 Telecommunications At that largely attempted to regulate internet content. The Communications Decency Act was successfully challenged in Reno v. American Civil Liberties Union (1997).
• Libel per se: A statement whose injurious nature is apparent and requires no further proof. 
• Libel per quod: A statement whose injurious nature requires proof. 
• Actual Malice: In libel law, a statement made knowing it is false or with reckless disregard for its truth. 
• All-purpose public figure: In libel law, a person who occupies a position of such persuasive power and influence as to be deemed a public figure for all purposes. 
• Limited-purpose public figure: In libel law, those plaintiffs who have attained public figure status within a narrow set of circumstances by thrusting themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved; this kind of public figure is more common than the all-purpose public figure. 
• Bootstrapping: In libel law, the forbidden practice of a defendant claiming that the plaintiff is a public figure solely on the basis of the statement that is the reason for the lawsuit. 
• Private Figure: Plaintiff who cannot be categorized as either a public figure or a public official. In order to recover damages, a private figure is required to prove not actual malice but merely negligence on the part of the defendant.

Important Cases: 

New York Times Co. v. Sullivan: Established the "actual malice" standard. In cases of libel, public figures must prove that the author had "knowledge of falsity and reckless disregard for the truth".

Hustler Magazine Inc. v. Falwell: The first amendment protected the magazine's Campari ad. A public figure/official who could prove that a satire included a false statement of fact published with actual malice could win a lawsuit for IIED. 

Relevant Doctrine: 

Libel Test:

• A statement of fact (not opinion)
• that is published
• is of and concerning the plaintiff
• is defamatory
• is false
• is the result of fault by the defendant
• And causes injury [or harm] to plaintiff

Intentional Infliction of Emotional Distress:

• Extreme and outrageous conduct
• Beyond the bounds of decency tolerated in a civilized society
• The conduct caused severe emotional distress
• The conduct was intentional or reckless

Current Issues or Controversies: 
In September of this year, a British cave diver who helped rescue the Thai boys sued Elon Musk for making accusations without evidence. Elon Musk accused the diver of being a "child rapist" on Twitter on several different occasions. The cave diver is seeking $75,000 in compensation and an injunction against Musk. 

My Questions/Concerns:

• What kind of evidence would be needed to show proof that the defendant is at fault and it caused injury? Is the plaintiff more likely to win a case if they were physically injured?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.