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 and categorized 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.

Also fundamentally obvious is that 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.)

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 libel defense common in the law of journalism and mass communication 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.

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.

As would-be journalists, it is from the perspective of a libel defendant that students especially need to grasp. What they 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. Many 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, rules, and issues round out Chapter 5—the wire service defense, single-publication rule, libel-proof plaintiff, Section 230 immunity, summary judgment, jurisdiction, statute of limitations, and retractions. Any one of them can be the right “tool” for the job of defending a libel claim.

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. We have added a new Points of Law box to help students navigate when Section 230 immunity applies and when it does not.