Advertising agencies, publishers and broadcast companies produce a steady stream of messages for the general public. The content of these messages often includes information about, or images of, specific individuals—whether they’re models, celebrities, employees or people on the street. In preparing content, publishers, broadcasters and agencies have always been aware of potential liability for claims of defamation of character or violation of an individual’s rights of privacy and publicity.

However, the rapid expansion of digital communication means that any design firm or client organization distributing information via e-mail or the web now faces many of the same legal risks. Someone may file a claim against you seeking to impose liability for economic loss or personal injury allegedly caused by some error or negligence in the content of the work that you produce (personal injury can be either physical or emotional, including a damaged reputation). In this two-part series, I explain the key legal issues that all communication professionals must be aware of.

DEFAMATION
Defamation is intentional communication of a false statement about someone to a third party—a statement that injures the subject’s good name and reputation, damages the subject’s standing in the community or deters others from associating with him or her. Defamation is a civil wrong (also referred to as a tort). In this context, “civil” means that the matter is a dispute between two private parties rather than a proceeding by the government against a party. The injured person can seek remedy by bringing a lawsuit against the person or company that made the false statement. The remedy will usually be in the form of damages awarded by the court. When an injured party takes legal action, he or she is the plaintiff in the matter and the individual or company that made the untrue statement is the defendant. There are two categories of defamation: slander and libel.

SLANDER
Slander is oral defamation—a spoken assertion about someone that’s not true. It happens when an individual tells one or more persons something false about someone else, usually in direct address. Other forms of communication are covered by libel.

LIBEL
Libel includes untruthful statements expressed in a fixed or permanent medium. For example, they could be in writing, on a sign, in a picture, or broadcast on radio, television or the internet. This means the statement has the potential to reach a very wide audience. The false statement must hold the subject up to ridicule, hatred, scorn or contempt; cause the subject to be shunned or ostracized; or cause the subject to suffer mental anguish and humiliation. The individual or company responsible for printing or broadcasting the statement (for example, a newspaper, a magazine, a political organization or a broadcaster) is open to a lawsuit by the person the statement was about.

In the U.S., most states demand that a defendent found at fault publish a retraction for libelous statements. A printed retraction serves as an admission of error and a public correction. And in most cases, the injured party doesn’t have the right to file a lawsuit if a correction is made. Very minor mistakes in reporting, however, are not considered to be libelous—this would include such simple errors as misstating someone’s age. In addition, it is generally the case that government bodies and public records are exempt from libel actions.

DEFAMATION PER SE
Certain types of untrue statements are so serious they’ll always qualify as defamation. They’re grouped together under the term defamation per se. Each of them is considered incapable of having an innocent meaning. Such accusations include:
• Imputing that the subject has committed a crime or engaged in criminal conduct
• Claiming that the subject has a feared illness or loathsome disease
• Imputing personal conduct or characteristics that render the
person unable to perform his or her occupation, such as stating that the person is incompetent or unreliable as a businessperson
• Claiming that the subject has engaged in unchaste behavior or immoral acts, such as serious sexual misconduct

If spoken, such statements are slander per se. If printed or broadcast, they are libel per se. The statement is actionable in itself, without the plaintiff introducing additional facts, because the harmful intent is considered to be obvious.

CLAIMS
When a claim of defamation is made, the following aspects will be examined very carefully:

IDENTIFICATION
A plaintiff must establish that the alleged defamation refers to him or her specifically. A statement isn’t defamation unless it identifies the person being attacked.

PUBLICATION
The statement must be shown or communicated to at least one other person before it’s actionable by law.

STATEMENT OF FACT
The statement must be reasonably understood by third parties to purport fact. If presented as a fact rather than as an opinion, the statement will be considered actionable. In general, opinions, satire and works of fiction—if they’re clearly identified as such—are not defamatory.

FALSEHOOD
The statement must be false. If it’s true and can be proven, the statement cannot be defamatory.

ACTUAL INJURY
In a lawsuit, no one can recover damages unless he or she has suffered injury. The plaintiff will be asked to provide proof of damaged reputation, mental anguish, suffering or economic loss.

LIABILITY
In many instances, whether or not the person who made the statement is found to be liable will depend on whether the injured party is a public figure or a private person. If a public figure is involved, the matter may be of public concern. Although libel is defined under state law, the U.S. Supreme Court has consistently ruled that First Amendment protection of free speech applies to matters of public concern. Because of this, a public figure must prove that the libelous statement was made with malicious intent. Otherwise, the statement will be protected as a form of fair commentary. Everyone has a constitutional right to express opinions or make fair comment on public figures. To recover damages, a well-known plaintiff (such as a politician, government official, celebrity or other prominent person) who alleges libel (by a newspaper, a radio station, etc.) must prove that the defendant made the statement with reckless disregard for the truth—perhaps even knowing it was false.

In contrast, there’s greater protection for a private person. A private person doesn’t need to prove malice on the part of the defendant, merely that some degree of negligence was involved in not checking for truthfulness before publishing the false statement.

LEGAL FEES
In many instances, a defendant who’s found to be liable will be ordered by the court to pay the plaintiff’s attorney’s fees.

DAMAGES
If the defendant is found liable for defamation, the plaintiff will be awarded damages in the form of monetary compensation. The amount of money the defendant is ordered to pay can be determined by the court in a number of different ways.

IN PART 2
Next time, we’ll look at the important legal issues of privacy and publicity. In the meantime, if you’re wondering what risks might be involved in a project you’re doing, ask your attorney for advice.