What Is Libel?

by David Taylor

What is libel? How can I avoid trouble?

Because nonfiction often deals with real people, the freelance writer needs to understand the restrictions placed by law upon the use of names of people in published texts, in print and on the Internet. How far can you go legally? Can you change the names and be safe? Public figures seem to be fair game, but what about government agencies and their employees?

Such questions touch upon one of the most complex issues that a journalist must face today. It's also an area where you can't afford to make mistakes. For example, it's true that public figures are treated differently; so are public officials. But the differences between the two can be fine.

Luckily there's a good guidebook for us: the "Briefing on Media Law" portion of The Associated Press Stylebook. And if you want to know what it says, you've got to go to the library or pay for it. You can order it online at the AP's web site. Accept no substitutes.

Here is a brief guide to libel and slander as I've come to understand them through cases I've been involved with as an editor (none of which we ever lost):

Libel, Slander and Defamation

Libel can be personal libel or trade libel, which is also known as "product disparagement." Product disparagement can include a product, service or entire company.

Libelous statements, whether against persons or products, are published statements that are false and damaging. Slander is the same as libel in most states, but in spoken rather than written form.

The terms "libel" and "slander" are often subsumed under the broader term "defamation." It is a tort (a wrongful act) to harm another's reputation by defaming them.

How do you know if you might defame someone or something in what you are about to publish? There are three tests which the defamatory statement must meet in order for a plaintiff to prevail in a suit against you and your publisher:

1. Untrue. In order to be defamatory, the statement must be untrue. If the statement is true or substantially true, then it is not defamatory, and the case is over.
   
   
2. Damaging. In order for the plaintiff to prevail, the statement must have caused real and substantial harm to the person or business. The plaintiff must present evidence of the substantial harm done.
   
   
3. Knowingly false. The plaintiff must also show that the defendant knew the statement was untrue, but published or broadcast the statement despite that knowledge.

From this brief explanation, you can deduce that the best way to avoid a libel charge, or to defeat it, is to:

1. Write only that which is true and can be shown to be true through your meticulous research and note taking.
   
   
2. Keep all research for a period of years, depending on the statute of limitations that applies where you are. In sum, you can say or publish just about whatever you wish in our open society--so long as it is true.

Public Official vs Public Figure

The same liberal rule applies to both categories: To prevail in a libel case against you, in addition to showing that your statement is untrue and caused significant harm, a public official or a public figure must also prove "malice" -- that you acted in reckless disregard to the facts known to you and with intent to harm.

Obviously, because of this stipulation, you enjoy considerable protection when it comes to public personages, since proving malice (intent to harm) places a heavy burden on the prosecution.

Who are these public people? The status of "public official" is relatively easy to determine from public records. The trick comes in determining who falls into the category of "public figure."

The courts have determined that there are two types of public figures:

• A "general purpose public figure" is someone who enjoys social prominence. Entertainers are in this category.
  
  
• A "limited purpose public figure" -- someone who has intentionally placed themselves into prominence, such as a vocal activist on a given issue.

The reasoning is that the press has a First Amendment duty to report on such newsworthy people, and therefore published statements warrant such protection.

Who is a private person? None of the above. Now you see why lawyers get the big bucks.

[NOTE: This article should not be considered a legal advice. If you have a concern about whether something in your writing is libelous, please consult a lawyer before publication.]

For More Information:

Online Libel Bibliography, The Freedom Forum

The Practical Guide to Libel Law, by Neil J. Rosini

The Copyright Permission and Libel Handbook, by Lloyd J. Jassin and Steve C. Schecter

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