Chapter 5 is a companion to Chapter 4. Whereas Chapter 4 addresses the plaintiff’s side of libel, Chapter 5 examines various libel defenses. While concepts in the two chapters are separated for ease of explanation, there are areas of overlap. For example, it is sometimes useful to discuss a particular defense within the presentation of the plaintiff’s case. In addition, a ruling such as New York Times v. Sullivan, while clearly most appropriately presented within the plaintiff’s case, has significant defense-related consequences. The ruling tipped the balance in favor of libel defendants. Thus, instructors may want to consider broaching some defense issues when their Chapter 4 corollaries are presented.
A fundamental fact that should be stressed in discussing libel defenses is that, while the entirety of the plaintiff’s case must be proven for a successful claim, only one defense is necessary to torpedo the plaintiff’s case. For this edition, we reorganized the chapter to better represent the changing impact of certain key libel defenses. For example, Section 230 Immunity is now a go-to defense in cases that broadly involve speech on the Internet and social media. It is not ironclad, but students should know of its frequent use as a shield.
Fundamentally, a libel defendant succeeds by refuting any aspect of the plaintiff’s case. One area on which attention is typically focused in this regard is the falsity prong of the plaintiff’s case. That is, countering the claim by proving the material is truthful serves as a solid defense. (As Chapters 4 and 5 point out, some potential libel plaintiffs file claims for other torts – if any claim at all – because of their desire to avoid the truth-falsity issue altogether.) The chapter leads with the reinforcing idea that truth is the ultimate defense for a libel claim.
Chapter 5 also explores the chilling effect of libel lawsuits on the media. SLAPP stands for strategic lawsuit against public participation, and it is a kind of lawsuit filed in an attempt to silence critics. Previously, we addressed SLAPPs in Chapter 4. The plaintiffs who file a SLAPP are sometimes under investigation for possible wrongdoing or people whose questionable business motives are being exposed. Plaintiffs rarely win these cases. Because SLAPPs are often used to try to suppress First Amendment rights, 31 states have enacted anti-SLAPP legislation that gives courts a way to address meritless lawsuits of all kinds. Recently, the federal courts have weighed in on anti-SLAPP laws – the First, Fifth and Ninth U.S. Circuit Courts have applied anti-SLAPP acts in part or in whole. The Eleventh Circuit Court and the D.C. Circuit Court have rejected the application of anti-SLAPP laws in favor of applying the Federal Rules of Civil Procedure.
Perhaps the most overlooked libel defense is the fair report (or conditional or qualified) privilege. At the same time, it is one of the most basic and important defenses and probably the most relied-upon. Simply stated, it allows journalists to report information from official sources, without fear of libel, provided that the report is done fairly and accurately. Thus, the defense is qualified; it stands as long as the report is fair and accurate. If the report does not meet those qualifications, the privilege is lost.
Another common libel defense is fair comment and criticism. Students typically relate well to this defense given that they are familiar with reviews of products and services to which this defense applies, especially as more online review sites like Yelp have emerged.
The opinion defense also tends to resonate with students, but its presentation should be handled carefully. Yes, opinion is protected from libel, but there is a specific test that must be applied in evaluating whether material qualifies for this Constitution-based defense. The Ollman test, though not derived from a U.S. Supreme Court opinion, continues to be the litmus test in this area. A sidebar on the Ollman case in Chapter 5 explains the case circumstances and is valuable as an illustration of how a set of circumstances turns into a court case and – in this instance – one that produces a vitally important test. The fact that the case also involves some recognizable names assists students in learning its facts.
Section 230 is part of the Communications Decency Act of 1996 and this important legislation shows up in other chapters. Of importance here is the idea that Section 230 generally provides legal protection to website operators and Internet service providers (ISPs) when issues arise from the content created by others. For 20 years, courts have rejected attempts to limit the application of Section 230 to only “traditional” ISPs like Verizon or America Online. Instead, they have extended protection to the many diverse entities commonly called “interactive computer service providers.” Under this broader definition, blog sites and other interactive services like YouTube, Facebook, or Twitter that rely on user-generated content, information provided from third-party RSS feeds or reader comments also may receive immunity from libel claims under Section 230. The key to determining whether Section 230 protects against a libel claim is to identify the source of the content and the extent to which the ISP interacted directly with the content. A Points of Law box will help students navigate when Section 230 immunity applies and when it does not.
What students will discover in the other defenses presented in Chapter 5 is the tenuous and subjective nature of defending a libel claim. Even opinion, with its Ollman test, is relatively subjective in that the conclusions derived from the application of the test are subject to judgment. (As some instructors tell their students, “That’s why we have judges – to make those judgment calls.”) But other defenses described in Chapter 5 are even more susceptible to such judgments. This includes parody and rhetorical hyperbole – material that no reasonable person could believe, and that therefore cannot damage reputation. Neutral reportage may be the most tenuous of libel defenses given that so many courts have either rejected it or not yet heard a case in which it is involved.
Recently, the courts have decided several cases involving a range of websites that include online reviews and other forms of commentary on the Internet. Some of these cases are found in the realWorld Law boxes throughout this section of the chapter. The key takeaway for students with respect to using the opinion defense for Internet websites and online commentary is that context is key (and parts 2 and 4 of the Ollman test is where this usually is assessed). For example, do people expect to find hyperbolic language on best and worst lists?
Other libel defenses and considerations round out Chapter 5 – the wire service defense, single-publication rule, libel-proof plaintiffs, summary judgment, motion to dismiss for actual malice, jurisdiction, statute of limitations, and retractions. Any one of them can be the right “tool” for the job of defending a libel claim.
II. Anti-SLAPP Protection
III. Fair Report Privilege
IV. Fair Comment and Criticism
- Letters to the Editor and Online Comments
- Rhetorical Hyperbole, Parody and Satire
VI. Section 230 Immunity
VII. Other Defenses
- Neutral Reportage
- Wire Service Defense
- Single-Publication Rule
- The Libel-Proof Plaintiff
VIII. Additional Defense Considerations
- Summary Judgment
- Motion to Dismiss for Actual Malice
- Statutes of Limitations