Libel law and editing 101

By William Hickman

If you are an editor, should you be aware of libel law? And why?

Libel law says that if you damage the reputation of someone by making a false public statement, you can be hauled into court by that person. If you cause people to think less of someone, that person can sue you. If you write or edit a story about someone that affects that person’s reputation—by impacting that person’s professional livelihood or taking money out of their pocket, for instance—they can sue you for libel.

Reputation is everything in libel. If reputation is not affected, if people don’t think less of someone because of a story you wrote or edited, then libel hasn’t happened.

Don’t think as an editor that you are immune from a libel lawsuit based on an article you edited but didn’t write. If you edit someone else’s communication, you can be held equally as liable as the person who wrote or created the communication.

This means libel is important to you as an editor.

While each state has its own set of libel laws, they all share the basics:

• Opinions aren’t libel. This essential point of libel is certainly getting a beating today on social media but the basic fact of libel law is still with us.
• A commutation that is true and damages someone’s reputation isn’t libel (but it may be an invasion of privacy … a story for another day).
• The person named or otherwise identified in the communication will have a harder time winning a libel lawsuit if that person is a public figure or a high-ranking public official. If few people know the person, that person will have an easier time winning a libel lawsuit.

So who can be a public figure or public person? We’ll get to that point later.

For libel to happen, you must have three persons:

1. The person who is the target or subject of the communication.
2. The person who wrote, created or edited the communication. That person will be you.
3. One or more persons who think less of the target or subject of the communication after they see or read the communication that you wrote, created or edited.

All three must be present for libel.

I envision libel to look like a triangle:

• The subject who is identified or otherwise described in the communication is at the top of the triangle.
• The writer, creator or editor of the communication is at the lower right of the triangle.
• The third person or persons who see or read the communication and who think less of the subject of the communication is at the lower left of the triangle. This person must exist for libel to exist.

Elements of libel

First, who can sue for libel? Any living persons. Any businesses. Any organizations.

Note that the dead cannot sue. This is because reputation dies with the person. Also, governments cannot sue.

Anyone who takes any part in preparing, disseminating or distributing the offending communication could be sued.

Libel has four basic goals: Monetary damages for the subject of the communication, restoring reputation, imposing greater responsibility on writers and editors and seeking the truth.

Do It Pretty Fast: The four elements of libel

When using the memory aid Do It Pretty Fast, each first letter is the first letter in the respective libel element. It breaks down like this:

• Defamatory words
• Identification: The communication identified or described the plaintiff.
• The statement was published.
• Fault: Actual malice or negligence

Let’s look at each of these four elements.

Defamatory words: These are the descriptions of the person or subject that cause others to think less of this person or subject. This can involve crimes, professional occupations, breaking news, photos, cartoons, print or online layouts, business, personal character, habits and obligations.

Identification: At first glance, this sounds like an easy element. Yes, it usually is when the person or subject is named. What if the person or subject is described but not named?

The communication must be reasonably understood as referring to the person or subject of the communication. That disinterested third party at the lower left in our triangle must be able to relate the communication to the person or subject of the communication. Simply put, a person or subject need not be named to be libeled.

The Rule of 25 states that anyone in a group of 25 or fewer persons can sue for libel, while anyone in a group of more than 25 will generally be denied identification in a libel lawsuit. The court generally will rule that the group is too big for an individual suing for libel to be identified.

Publication: This means the communication was conveyed in any way to our third party. This communication can be in print or electronic and delivered by a variety of ways. The communication requires understanding.

Fault: This is the element that drives people crazy because it’s confusing. It doesn’t have to be.

“Fault” refers to the person or subject of the communication at the top of our triangle. It asks what the status of this person is, public or private? Someone or something that people know? Or someone or something that few or no one can recognize?

What the status is will affect the libel lawsuit, making it harder or easier to decide.

Without putting you to sleep over the sources of this public/private status, it’s really better to tell you what the law means.

If the person or subject at the top of our triangle, aka the plaintiff, is a public official or public figure, this plaintiff will have to prove the writer or editor at the lower right of the triangle committed actual malice in writing or editing the communication. It will be harder for the person or subject to win the libel lawsuit.

If the plaintiff  is a private figure, they will have to prove the writer or editor was negligent in producing the communication. It will be easier for the person or subject to win the libel lawsuit.

Why is this?

The standard of actual malice is like a high-privacy fence that the plaintiff has to leap over to win the libel lawsuit. “Actual malice” means the writer or editor knew the communication was false but published it anyway. Or, the writer or editor published the communication and did not care whether it was true or false.

“Negligence” means the writer or editor was careless when producing the communication for publication.

Actual malice is like murder. Negligence is like manslaughter. Actual malice (and murder) will want to know what the writer or editor was thinking when producing the communication. Negligence isn’t concerned with what the writer or editor was thinking. The communication was false, and the writer or editor produced the communication.

It takes many witnesses and documents to show in court what a person was thinking when they did something. Murder looks squarely at motive, what the person thought when they killed someone. Negligence means someone died and the person did it. What they thought isn’t relevant. It is harder in court to show state of mind. It is easier to show someone caused something without getting into what they were thinking.

How does a court decide whether a person is public and private? What makes someone a public figure? Public figures can be public officials or any other person actively involved in public affairs, like celebrities, business leaders and politicians. Also public people generally have greater access to the media in order to counter false communication, and to a certain extent seek out public recognition or support.

Defenses to a lawsuit: What can you argue to counter libel in court?

Absolute Privilege and Qualified Privilege: These can protect the writer or editor, depending on the place and subject of the communication. It is important to remember that these privileges apply to two different people.

The “qualified privilege” says that if the writer or editor is producing a communication that accurately and fairly describes an event, he or she gets  privilege protection from a libel action. It is qualified because the writer or editor has to describe the topic event accurately. If this isn’t done, the privilege doesn’t apply.

The “absolute privilege” applies to individuals making statements or actions a) as participants in a trial (judges, lawyers, witnesses); b) as lawmakers (members of Congress, legislators, city council members); and c) as government administrators and police officers (arrest reports).

Neutral Reportage: Expands qualified privilege protection to communications describing actions outside the three absolute privilege areas described above.

Opinion: The libel protection protects communications of opinion from libel actions. However, court decisions in recent years have clarified what “opinion” is . An opinion implies an assertion of objective fact. The U.S. Supreme Court has said that to be protected, an opinion must be based on correct, even unstated, facts.

Tips for editors

When you are communicating an opinion, try to make sure it is understood as such.

Clearly state and summarize facts upon which the communication of opinion is based. Ask yourself whether you believe a court could find that these facts support the opinion about the matter that you wrote or edited. Make certain the facts are true. If the facts are in dispute, refer to both sides of the dispute when stating opinion.

Clearly, this article has oversimplified the nuances of libel law, but is intended to give you the broad strokes.

Header photo by Trent Erwin on Unsplash