The SC circular on libel cases ASupreme Court circular suggesting to trial judges to impose only a fine instead of a prison

term in deciding libel cases has been widely welcomed by the media as the courts growing sense of liberalism in the application of sanctions to persons convicted of libel. The Revised Penal Code says that persons found guilty of libel shall be punished by prision correctional in its minimum and medium periods (from one month and one day to six months or six months and one day to six years) or a fine ranging from P200 to P6,000, or both, in addition to the civil action which may be brought by the offended party. Chief Justice Reynato S. Puno said the circular could be of great help to members of media. There have been a few negative reactions to the circular. Some sectors have described it as unconstitutional or an action that can invite a class suit. Some media representatives have proposed the decriminalization of libel as the better alternative to the circular. But Sen. Loren Legarda sees the circular as a well-meaning move that will discourage trial judges from handing down prison sentences to journalists convicted of libel and encouraging the bench to instead impose fines. The senator is the author of Senate Bill 223 which seeks to impose a fine instead of imprisonment in cases of libel convictions. The proposed fine under her bill is limited to a range of P100,000 to P300,000. While the penalty of a fine must be sustained, for no crime should go unpunished, the penalty of imprisonment has merely served to discourage members of the media from performing their duties with even greater zeal and vigilance, said Legarda, a former broadcast journalist. The first major case of a libel conviction occurred in 1637 in England when a book author criticized the queen. In an article, Libel Law in the US, Steven Pressman, a legal writer and editor in San Francisco, California, said the author, William Prynn, was found guilty and ordered to spend the rest of his life in prison. As an added punishment, Prynn had his ears lopped off before he was hauled off to jail, Pressman said. Libel is defined in the Funk and Wagnalls New Encyclopedia as an unjustified defamatory, written or printed, and published statement, picture or other graphic representation, calculated to injure the reputation of a person by holding him or her in ridicule, contempt or hatred, or to injure the person in his or her profession or occupation. In the US where libel cases are largely decided as a civil action by juries, libel victims win about 75 per cent of their suits, ending in huge awards in compensatory damage. Pressman, in his article, said the media succeed in reversing jury verdicts most of the time after they appeal to higher courts. There was a time in the US when a jurisprudence had been established that truth was an absolute defense in a libel case. But in the evolution of libel trials, a legal doctrine emerged showing that public officials could no longer sue successfully for libel unless reporters or editors were guilty of actual malice when publishing false statements about them. Malice is defined by retired US Justice Wiliam Brennan Jr. as knowledge that the [published information] was false, or that it was published with reckless disregard of whether it was false or not. In the Philippine context (as I learned in a journalism class where Libel Law was a subject), truth is not a defense in a libel case. A proven malice on the part of the accused lies at the core of a libel conviction. There is great merit to the proposal to decriminalize libel to remove the ever-present threat of imprisonment hanging over the head of a media practitioner facing a libel suit. This can be woven into the Legarda bill seeking to abolish imprisonment in a libel conviction. The Legarda measure can be further improved by embodying a provision that trials of libel cases should be held in a place convenient to both parties in a libel suit. This will blunt the proclivity of most libel victims to file cases in remote areas where an offending article has been read in their design to punish an accused. In drafting a new law on libel, the ultimate goal is to give media a wider latitude in the performance of their duty while at the same time ensuring a more accurate reporting by its members.

IV. DEFENSES TO DEFAMATION

Recent jurisprudence offers further protection for free expression at the trial stage. In defamation cases, the two parties often agree on the contents of the controversial statement. The questions for the court include: is the statement true, does it matter if it is true, how will readers interpret it, and what was the mens rea of the person who made it. Recognizing that imposing too high a burden on the defendant can discourage that party or future ones from speaking freely, courts have tried to shift some of the weight to the plaintiff. This part will begin by describing the traditional common law defenses to defamation, which are still used and continue to be refined. Then it will analyze and compare several new defenses available for statements of fact and statements of opinion. *** Top of Page 274 *** A. Traditional Defenses Once an action reaches trial, the common law has traditionally offered three defenses to defamation: truth, fair comment, and privilege.[60] Truth, or justification, is a complete defense for statements of fact. If defendants can prove the truth of a defamatory statement, they cannot be held liable for damages. Perfection is not required, however. In Britain, for example, the defendant only needs to show that the statement is substantially correct.[61] The defense of fair comment offers protection for the expression of opinions. The court does not need to agree with the opinion; instead, it must determine whether the views could honestly have been held by a fair-minded person on facts known at the time.[62] While it may be easier to argue fair comment than to justify facts, the defense does not cover all opinions. Defendants must prove their opinions were based on facts[63] and made for the public interest; the latter requirement is not too difficult to meet unless the defamation deals with the private life of someone who is not a public figure.[64] Defendants do not need to prove they honestly held the opinion, only that a reasonable person could hold such an opinion.[65] Unlike justification, fair comment can be defeated if the plaintiff proves the defamer acted maliciously.[66] Privilegeabsolute or qualifiedis designed to protect expression made for the public good. Absolute privilege offers a complete defense for people with a public duty to speak out. For example, elected officials may speak freely in Parliament; judges, lawyers, and witnesses cannot be sued for what they say in court; certain government officials are not liable for reports about matters of state.[67] Without such a defense, the threat of defamation suits would deter these people from speaking freely and the public interest would suffer. Qualified privilege provides protection to expression made in the public interest unless statements are made with malice. It requires reciprocity of interest between the person who makes a comment and the person who receives it.[68] The defense applies to people with a social or moral duty to report information, such as the occurrence of a crime, and to authorities who have a duty to receive and act upon communications or complaints.[69]

B. Recent Developments While the common law defenses to defamation offer some protection to freedom of expression, courts in recent years have recognized that they are often inadequate. A true statement should never be defamatory, but requiring a defendant to prove truth presents an obstacle to free expression. Evidence rules are strict, and journalists fear being compelled to reveal their sources. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.[70] Fair comment and privilege are problematic because they apply only in limited situations. Qualified privilege, for example, rarely helps the media because it disseminates information to the public at large and therefore lacks the required reciprocity. Fair comment only protects opinions, and the dividing line between facts and opinions is often unclear. Courts try to determine how an ordinary reader would classify a statement by looking at it in context.[71] Commenting on the traditional defenses, one court wrote, the balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation.[72] As a result, courts have had to develop new ways to protect expression in an attempt to shift the balance the other way. In recent cases, they have introduced new defenses or fine-tuned old ones. The next two parts will examine modern protections for statements of fact and statements of opinion. Although different jurisdictions have adopted different approaches, these developments represent another move toward liberalizing defamation law. 1. Defenses of Facts Several decades before the recent string of defamation cases, the U.S. Supreme Court developed a groundbreaking test to protect freedom of expression. Recognizing the limits of the traditional truth defense, New York Times Co. v. Sullivan (1964) focused on the defendants intent and established a malice requirement for defamation. The test applies specifically to public officials and shifts the burden of proof to the plaintiff, in contrast to the traditional common law defenses.[73] The case involved an advertisement run in

the New York Times and signed by, among others, four African American clergymen also named as defendants. Sullivan, an elected police commissioner from Montgomery, Alabama, alleged that the advertisements accusations of police violence against civil rights protestors damaged his reputation.[74] Although the advertisement contained some factual errors, Justice Brennan rejected the requirement that the defendant prove truth and argued that an erroneous statement is inevitable in free debate.[75] The court ruled that a public official could only recover damages if he or she could prove the statement was made with actual malicethat is, with knowledge that it was false or with reckless disregard for whether it was false or not.[76] Addressing the balance between reputation and free expression, Justice Brennan said the fact that the plaintiff may have suffered injury to official reputation did not justify repressing speech that would otherwise be free.[77] By shifting the burden and changing the mens rea for defamation, this case excused innocent mistakes and protected political criticism made in good faith. Considered a trailblazer for protecting free expression, Sullivan has sparked debate in jurisprudence around the world, and during the past decade, several foreign courts adopted its rule. The Indian Supreme Court discusses Sullivan at great length in Rajagopal, which involved the publication of a convicted murderers autobiography alleging criminal links with prison officials. While acknowledging that the Indian Constitution may not protect as much expression as the First Amendment of the United States, the court shared the belief that the media plays a valuable role as a government watchdog. Avoiding the term malice, it held public officials have no action for damages with regard to official duties unless they can prove defendant published information with reckless disregard for the truth.[78] Pakistans High Court in Lahore also followed Sullivan in Nazami v. Muhammad Rashid (1996).[79] Two local dailies had printed the statements of a third party, who described a well-known politician as senile, frustrated, and corrupt.[80] The court found the publisher did not print the statements with malice and had even sought comment from the plaintiff before publication.[81] Other domestic courts have seen a need for new defenses but rejected Sullivan as going too far. The High Court of Australia, in Theophanous v. H & W Times (1994), established a reasonableness standard that has been copied around the world.[82] Theophanous, a member of the House of Representa-

tives, sued the newspaper for publishing a letter to the editor claiming he was an idiot and biased toward Greek immigrants. [83] The court set up a three-part reasonableness test for the defendant to escape liability. The defendant must prove it did not know the information was false, it did not publish recklessly, and its decision to publish was justifiable. It thus gave the publisher protection whether or not the material is accurate.[84] In contrast to Sullivan, however, the Australian court ruled the defendant should bear the burden of proof because it has better information about the publication history and forcing a plaintiff to prove unreasonableness would give inadequate protection to reputation.[85] The court also decided to protect statements about certain subjects rather than certain people. The reasonableness test applies not to scrutiny of public figures, but to political discussion, defined as discussion of the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office.[86] Although it did not go as far as Sullivan, Theophanous represented a sizable step forward for freedom of expression because it abolished the requirement to prove factual statements to be true. The Theophanous court envisioned the reasonableness defense as a substitute for traditional qualified privilege. After its ruling, the common law defense will have little, if any, practical significance where publication occurs in the course of the discussion of political matters.[87] Because the public has an interest in political discussion, anyone contributing to it, including the media, can meet qualified privileges requirement of reciprocity of interest. Rather than requiring defendants to prove privilege, however, the Australian court found that allowing the defendant to prove reasonableness better protected its implied constitutional right to freedom of expression.[88] Last fall, the English House of Lords demonstrated the problems of requiring media defendants to prove privilege. In Reynolds v. Times Newspapers Ltd. (1999),[89] the court refused to establish a general privilege for the publication of political information. Reynolds, who had just resigned as the Prime Minister of Ireland, claimed the Sunday Times had falsely accused him of withholding information and deliberately and dishonestly misleading the Irish House of Representatives and his coalition cabinet.[90] The newspaper argued that it was in the public interest to print the story. The court discussed many of the cases analyzed in this section,[91] but limited its deci-

sion to qualified privilege and ruled against the Times. Recognizing the value of free expression, however, the court somewhat modified the common law and emphasized the need to view the situation with todays eyes.[92] Reynolds replaced the traditional requirement of reciprocity with a circumstances test, which a judge may use to decide if privilege is appropriate in a particular case.[93] To determine if the public was entitled to know the particular information,[94] the judge will consider many factors, including the seriousness of the allegation, the nature and source of the information, efforts made to verify the information, and the urgency and tone of the article.[95] Such a test offers the possibility, but no guarantee, of privilege for the press; the court found the Times story too one-sided.[96] While showing the value of reforming old rules, this case also highlights the greater power of developing new ones. After Australias breakthrough in Theophanous, several other countries have adopted a version of the reasonableness test. In National Media Ltd. v. Bogoshi (1998), the South African Supreme Court of Appeal rejected strict liability for defamation.[97] It said the courts should instead look to the nature, extent and tone of the allegations to determine if a publication was reasonable. The publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time.[98] Political discussion, for example, warrants greater freedom of expression. Other

factors include the reliability of the source of the information and the steps journalists took to verify it.[99] Like Australia, South Africa placed the burden of proof on the defendant because the facts upon which defendants rely are peculiarly within their knowledge.[100] This part of Bogoshi was actually a setback for freedom of expression because it overturned Holomisa v. Argus Newspapers Ltd. (1996), which gave primacy to free expression and put the burden of proof on the plaintiff.[101] Nevertheless, the Supreme Court of Appeals willingness to protect political speech represents a valuable precedent in a burgeoning democracy like South Africa.

The previous cases all relieve the defendant of the burden of proving the truth of factual statements by establishing alternative defenses more favorable to freedom of expression. While truth should not be required, it should remain available as a defense. Defendants should have the right to prove truth if it is easier for them. The ECHR recognized the importance of the truth defense in Castells.[102] In his magazine article about violence in the Basque Country, Castells claimed that the government had not investigated or prosecuted murderers because it was protecting local officials involved in the crimes. Castellss lawyers argued the material was true and reflected the views of the general public, but the Spanish court refused to let the defendant submit evidence supporting this defense. The ECHR found that Castellss assertions were susceptible to an attempt to establish truth, and if proved true, could have changed the outcome of the case.[103] The court ruled that the refusal to admit the defendants evidence represented a violation of his right to free expression unnecessary in a democratic society.[104] While modern defenses strive to protect freedom of expression, this case serves as a reminder that courts must allow defendants to use traditional defenses where they offer more protection. 2. Defenses of Opinions While the malice and reasonableness tests protect statements of fact, other recent cases have focussed on protecting the right to express opinions. In Lingens, the ECHR distinguished facts, which can be proved, and value-judgments, which cannot.[105] Lingens argued that his description of retiring Chancellor Kreiskys base opportunism and immoral behavior were valuejudgments. Under Austrias Criminal Code, however, he had to prove that his statements, even opinions, were true. As regards value-judgments this requirement is impossible of fulfillment, the ECHR wrote, and it infringes freedom of opinion itself, which is a fundamental part of the right secured by Article 10 of the Convention.[106] The ECHR found that requiring a defendant to prove the truth of an opinion was not only impossible, but also an unnecessary and disproportionate way to protect reputation.[107] Although they discuss the significance of the distinction, courts have not clearly defined how to determine if a statement is fact or opinion. In Castells, the majority treated the defendants statements as provable facts. Two concurrences, by contrast, argued his comments were opinions and, therefore, the truth of his statements was irrelevant. For Judge De Meyer, it made no

difference whether Mr. Castells was right or wrong.[108] Judge Pekkanen recognized the difficulty for a defendant if forced to prove the unprovable. I consider that it was not possible for Mr. Castells to prove the truthfulness of his opinion . . . , he wrote. For finding a violation of Article 10 of the Convention it is sufficient that Mr. Castells was punished for criticizing the Government when he had done so in a way which should be allowed in a democratic society.[109] Unfortunately, these judges did not establish a test for determining if a statement is fact or opinion, or even explain why they interpreted Castellss statements as they did. If courts err toward opinion, they will provide better protection for freedom of expression. In Thorgeirson, for example, the ECHR treated a journalists summary of public opinion similar to an individuals opinion. Thorgeirson based his descriptions of police brutality at least in part on stories and rumors familiar to most people. In so far as the applicant was required to establish the truth of these statements, the ECHR wrote, he was . . . faced with an unreasonable if not impossible task.[110] Recognizing it is as hard to prove other peoples opinions as it is ones own, it relieved him of the burden of proving the truth of that opinion. Courts have also protected opinion by expanding traditional defenses. Two years ago, the Supreme Court of Zimbabwe modified its fair comment doctrine to provide greater protection for freedom of expression. Moyse v. Mujuru (1998) involved a Horizon Magazine article that referred to General Mujuru, former Commander of the National Army and a Member of Parliament.[111] The article suggested that Mujuru was involved in dishonourable, disreputable or dishonest activities in his district.[112] While the court found the statements defamatory, it excused them under fair comment. In an earlier case, the Supreme Court had laid out a five-part test for proving the defense of fair comment. The allegation must be: (1) a comment or opinion, (2) fair, i.e., based on some foundation, (3) based on true facts, (4) a matter of public interest, and (5) based on facts stated clearly in the publication.[113] In Moyse, the Supreme Court found the fifth requirement too limiting. It expanded it to include facts known generally to readers, even if not present in the allegedly defamatory document.[114] In an effort to give freedom of expression greater protection from defamation suits, courts have both refined and replaced the traditional defenses to fact and opinion. The option to prove truth remains, as does a less stringent fair comment rule. Qualified privilege lives on in the Theophanous defense for political discussion. Progressive courts have developed new defenses, such as

the malice and reasonableness tests. These cases not only restrict the abuse of defamation law, but also exemplify the value of comparative law. International, commonwealth and U.S. courts consistently cite each other, creating a dialogue that helps spread and advance positive jurisprudence. Defenses Even if a statement is derogatory, there are circumstances in which such statements are permissible in law. [edit] Truth (unless economic loss is experienced) In many legal systems, adverse public statements about legal citizens presented as fact must be proven false to be defamatory or slanderous/libel. Proving adverse, public character statements to be true is often the best defense against a prosecution for libel and/or defamation. Statements of opinion that cannot be proven true or false will likely need to apply some other kind of defense. The use of the defense of justification has dangers, however; if the defendant libels the plaintiff and then runs the defense of truth and fails, he may be said to have aggravated the harm. Another important aspect of defamation is the difference between fact and opinion. Statements made as "facts" are frequently actionable defamation. Statements of opinion or pure opinion are not actionable. In order to win damages in a libel case, the plaintiff must first show that the statements were "statements of fact or mixed statements of opinion and fact" and second that these statements were false. Conversely, a typical defense to defamation is that the statements are opinion. One of the major tests to distinguish whether a statement is fact or opinion is whether the statement can be proved true or false in a court of law. If the statement can be proved true or false, then, on that basis, the case will be heard by a jury to determine whether it is true or false. If the statement cannot be proved true or false, the court may dismiss the libel case without it ever going to a jury to find facts in the case. In some systems, however, notably the Philippines, truth alone is not a defense.[9] Some U.S. statutes preserve historical common law exceptions to the defense of truth to libel actions. These exceptions were for statements "tending to blacken the memory of one who is dead" or "expose the natural defects of one who is alive".[10] It is also necessary in these cases to show that there is a well-founded public interest in the specific information being widely known, and this may be the case even for public figures. Public interest is generally not "that which the public is interested in", but rather "that which is in the interest of the public".[11] [12] On Friday, February 13, 2009, the U.S. 1st Circuit Court of Appeals ruled in the case of Noonan v. Staples, that even a true statement, if made with malicious intent, could stand as the basis of a defamation suit. This ruling was based on a specific clause in Massachusetts libel law, allowing libel suits for true claims made in "actual malice." It does not, therefore, represent a precedent to overturn defamation jurisprudence in other jurisdictions. See also: Substantial truth [edit] Privilege and malice Privilege provides a complete bar and answer to a defamation suit, though conditions may have to be met before this protection is granted. There are two types of privilege in the common law tradition: * "Absolute privilege" has the effect that a statement cannot be sued on as defamatory, even if it were made maliciously; a typical example is evidence given in court (although this may give rise to different claims, such as an action for malicious prosecution or perjury) or statements made in a session of the legislature (known as 'Parliamentary privilege' in Commonwealth countries). * "Qualified privilege" may be available to the journalist as a defense in circumstances where it is considered important that the facts be known in the public interest; an example would be public meetings, local government documents, and information relating to public bodies such as the police and fire departments. Qualified privilege has the same effect as absolute privilege, but does not protect statements that can be proven to have been made with malicious intent. [edit] Other defenses Defenses to claims of defamation include: * Truth is an absolute defence in most United States jurisdictions as well as in the common law jurisdictions of Canada. In some other countries it is also necessary bringing the information brought to light serves a public good. Some states, though, have different rules. Notably, in Massachusetts, true statements made in "actual malice" can be found libelous. See Noonan v. Staples in which the U.S. 1st Circuit Court of Appeals ruled that even a true statement, if made with intent to harm a plaintiff's reputation, could stand as the basis for a suit. * Statements made in a good faith and reasonable belief that they were true are generally treated the same as true statements; however, the court may inquire into the reasonableness of the belief. The degree of care expected will vary with the nature of the defendant: an ordinary person might safely rely on a single newspaper report, while the newspaper would be expected to carefully check multiple sources. But, On Friday, February 13, 2009, the U.S. 1st Circuit Court of Appeals ruled in the case of Noonan v. Staples, that even a true statement, if made with malicious intent (i.e., ill will toward the plaintiff's reputation), could stand as the basis of a defamation suit, leapfrogging backwards over more than 40 years of defamation jurisprudence.

* Privilege is a defense when witness testimony, attorneys' arguments, and judges' decisions, rulings, and statements made in court, or statements by legislators on the floor of the legislature, or statements made by a person to his spouse, are the cause for the claim. These statements are said to be privileged and cannot be cause for a defamation claim. * Opinion is a defense recognized in nearly every jurisdiction. If the allegedly defamatory assertion is an expression of opinion rather than a statement of fact, defamation claims usually cannot be brought because opinions are inherently not falsifiable. However, some jurisdictions decline to recognize any legal distinction between fact and opinion. The United States Supreme Court, in particular, has ruled that the First Amendment does not require recognition of an opinion privilege.[13] * Fair comment on a matter of public interest, arguments made with an honest belief in their soundness on a matter of public interest (such as regarding official acts) are defendable against a defamation claim, even if such arguments are logically unsound; if a reasonable person could honestly entertain such an opinion, the statement is protected. * Consent is an uncommon defense and makes the claim that the claimant consented to the dissemination of the statement. * Innocent dissemination is a defense available when a defendant had no actual knowledge of the defamatory statement or no reason to believe the statement was defamatory. The defense can be defeated if the lack of knowledge was due to negligence. Thus, a delivery service cannot be held liable for delivering a sealed defamatory letter. * Claimant is incapable of further defamatione.g., the claimant's position in the community is so poor that defamation could not do further damage to the plaintiff. Such a claimant could be said to be "libel-proof," since in most jurisdictions, actual damage is an essential element for a libel claim. Essentially, the defense is that the person had such a bad reputation before the libel, that no further damage could possibly have been caused by the making of the statement. In addition to the above, the defendant may claim that the allegedly defamatory statement is not actually capable of being defamatoryan insulting statement that does not actually harm someone's reputation is prima facie not libelous. Also, the public figure doctrine, also called the absence of malice rule, may be used as a defense. [edit] Public figure doctrine (absence of malice) Special rules apply in the case of statements made in the press concerning public figures, which can be used as a defense. A series of court rulings led by New York Times Co. v. Sullivan, 376 U.S. 254 (1964) established that for a public official (or other legitimate public figure) to win a libel case, the statement must have been published knowing it to be false or with reckless disregard to its truth, (also known as actual malice).[14] Under United States law, libel generally requires five key elements. The plaintiff must prove that the information was published, the plaintiff was directly or indirectly identified, the remarks were defamatory towards the plaintiff's reputation, the published information is false, and that the defendant is at fault. The Associated Press estimates that 95% of libel cases involving news stories do not arise from high-profile news stories, but "run of the mill" local stories like news coverage of local criminal investigations or trials, or business profiles. Media liability insurance is available to newspapers to cover potential damage awards from libel lawsuits. [edit] Defamation and freedom of speech Defamation laws may come into tension with freedom of speech, leading to censorship or chilling effects where publishers fear lawsuits, or loss of reputation where individuals have no effective protection against reckless or unfounded allegations. Article 10 of the European Convention on Human Rights permits restrictions on freedom of speech which are necessary for the protection of the reputation or the rights of others.[15] Jurisdictions resolve this tension in different ways, in particular in determining where the burden of proof lies when unfounded allegations are made. The power of the internet to disseminate comment, which may include malicious comment, has brought a new focus to the issue.[16] There is a broader consensus against laws which criminalize defamation. Human rights organizations, and other organizations such as the Council of Europe and Organization for Security and Co-operation in Europe, have campaigned against strict defamation laws which criminalize defamation.[17][18] The European Court of Human Rights has placed restrictions on criminal libel laws because of the freedom of expression provisions of the European Convention on Human Rights. One notable case was Lingens v. Austria (1986). =============================================================================================== In law, defamation (also called calumny, libel, slander, and vilification) is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image. Slander refers to a malicious, false and defamatory spoken statement or report, while libel refers to any other form of communication such as written words or images. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against groundless criticism. Related to defamation is public disclosure of private facts, which arises where one person reveals information that is not of public concern, and the release of which would offend a reasonable person. Or an untruthful oath.[1] "Unlike [with] libel, truth is not a defense for invasion of privacy."[2] False light laws are "intended primarily to protect the plaintiff's mental or emotional well-being."[3] If a publication of information is false, then a tort of defamation might have occurred. If that communication is not technically false but is still misleading, then a tort of false light might have occurred.[3]

About Libel

By Faith O., eHow Editor Webster's dictionary defines libel as: (1) a statement or representation published without just cause and tending to expose another to public contempt; (2) defamation of a person by written or representational means; (3) the publication of blasphemous, treasonable, seditious, or obscene writings or pictures; and (4) the act, tort, or crime of publishing such a libel. By law, libel comes under the umbrella of defamation. Defamation when written or in the form of a representation such as a photograph is considered libel; when defamation is spoken, it is slander. The Facts According to the Media Law Resource Center, generally under U.S. law with some variations from state to state, the following criteria have to be met for a libel claim to be valid: 1. The alleged defamatory statement must have been published to at least one more person, and it must be clear to those hearing or reading it to whom the defamatory statement refers. 2. The alleged statement must be defamatory and actually harmful to the reputation of the person involved, not just offensive or insulting. 3. The statement must be false of fact that can be be proved true or false. Hyperbole or any sort of name calling will not qualify as a false statement of fact. 4. The alleged defamatory statement must have been made by fault or on purpose. The extent of fault for which the defendant will be held liable depends on whether the plaintiff is a public or private figure. Public figures such as elected officials or celebrities need to prove that the statement was malicious. Malice is a legal term which means that the defendant knew his statement was false and made it anyway in reckless disregard of the truth. Private individuals need only to prove that the defendant was negligent in making the false statement. History of The history of the law governing libel and defamation in general dates back to Roman jurisprudence, which serves as the basis for most of Western law. Between the 1500s and 1800s, seditious libel was a common charge in England and the United States. It was used in connection with defamatory statements allegedly made against the government. As sedition gradually became separate from libel, it became less common for the government to file libel suits even though some government officials filed such suits individually. Features There are two kinds of libel: direct (per se) and indirect (per quod). Direct libel is when a person directly makes a statement that ridicules another, while indirect is when the statement makes implied ridicule of another. The following can be used as defenses against libel: 1. Truth. In the United States, if it is true, then it is not libel. 2. Privilege. Statements made in a court room or the floor of a legislative body have absolute privilege. If these statements are quoted by a newspaper for example, the newspaper and reporters quoting such statements are protected by qualified privilege. Under broadcast law, the Equal Time Rule protects stations carrying the statements of public officials or people running for office and grants such stations absolute privilege. 3. Fair comment and criticism. Comments made in editorial and opinion pieces on the public performance of public figures who voluntarily put themselves in the limelight are protected by law as long as the statements are specific and precise, can be verified, are in an understood literary context (think The Onion versus the New York Times), and are in an understood public context (e.g., the conduct of candidates running for office in an election). Other defenses used against libel are retraction, neutral reportage, statute of limitations and death. Risk Factors The following cannot be used as a defenses against libel: 1. Using the word "allegedly." "Allegedly" as a qualifier by law does not change the statement it qualifies. "He allegedly stole" is the same thing as saying "he stole." 2. Official attribution. Just because the police says they arrested somebody for murder does not mean that the person committed the crime. The best way to report that would be: "The police arrested John Doe in connection with the murder," or "The police have charged John Doe with murder" (if he has indeed been charged). 3. Off-the-record attribution. Such comments cannot be proved in a court of law and therefore cannot be used as a defense against libel. It is one person's word against another's. 4. Claims of opinion. This cannot protect in a libel suit. Saying "In my opinion, she is a prostitute" without proof of fact that she is a prostitute is still a malicious statement of fact. 5. Unofficial court documents. Documents such as affidavits are not covered by privilege until they have been admitted into evidence and therefore cannot be a defense in a libel suit. Significance The issue of libel in the United States is closely connected to the First Amendment and freedom of speech and what an entity or individual has the right to say or publish about another. Libel suits are usually brought to defend a ruined reputation or for vengeance. Lawyers who specialize in this area of law are called First Amendment lawyers. All who care about freedom of speech closely monitor and advocate against cases that in any way would result in censorship. In the United States, the burden lies on the plaintiff to prove that the defamatory statement is false. In Europe, the burden lies on the defendant to prove that a statement is true. With the Internet being the new frontier of publishing, future libel suits will most likely clarify the law with respect to the Internet. Cases decided so far have absolved operators of chat rooms, for example, of the responsibility to monitor or censor what is being said on their sites. Individuals are responsible for their statements.