Libel is libel


Friday, November 30
Right now, there is a great deal of debate on various Web sites around the state over the merits of a libel suit filed by a Rescue Inc. volunteer against former Rescue Inc. executive director David Dunn and the owners of iBrattleboro, Chris Grotke and Lise LePage.

According to the suit, the volunteer is suing Dunn for defamatory comments about her that were posted on iBrattleboro, and suing Grotke and LePage for allowing the comments to appear of their Web site.

Leaving aside the merits of the case, a quick overview of libel law may be in order here.

According to the Media Law Resource Center, libel occurs when a false and defamatory statement about an identifiable person that is printed, broadcast, spoken or otherwise communicated to a third party, causing injury to the subject's reputation.

There is no uniform law for libel. Each state decides what the plaintiff in a libel suit must prove and what defenses are available for defendants. However, constitutional law requires that plaintiffs must prove that the statement has caused actual harm to their reputation, as opposed to being merely insulting or offensive, before someone can be held liable for defamation.

It has been often said that truth is an absolute defense to libel, but absolute accuracy isn't the main criterion. Rather, the general standard is that the information must be substantially true and that the plaintiff must prove that the statements of fact were false and were made with knowledge of, or reckless disregard for, their falsity. Even if a plaintiff can prove a statement is false, he cannot win a libel case unless he can also prove reckless disregard.

Libel law applies to Web sites too. While federal law protects Internet service providers from lawsuits, the MLRC said there have been five cases in recent years where bloggers have been sued and forced to pay damages for information posted on their Web sites. There are dozens of other cases in the legal pipeline.

Here is where the law can get tricky. On its home page, iBrattleboro says it is an "original, locally-owned citizen journalism site." Is what appears on iBrattleboro "journalism?" Are the people who post there "journalists?" While Grotke and LePage do perform actual journalism, as do other volunteers, the bulk of the content on iBrattleboro is opinion posted by mostly anonymous contributors. So is iBrattleboro a news site, or is it a blog? Further, what is Grotke and LePage's responsibility for monitoring the comments posted on their site?

This line of questioning is not to knock Grotke and LePage. They are doing good work, but they are not immune to libel law. They unfortunately forgot an important principle that might have prevented this suit -- a timely correction of false or defamatory information and a formal apology will usually prevent legal action.

The Iowa Libel Research Project, conducted during the mid-1980s, found that while libel suits take an average of four years to complete and that most plaintiffs will lose, people still will sue. The researchers found that damage to reputation or financial harm were the main factors that prompted libel suits. Nearly three-quarters of the plaintiffs said that they would have been satisfied with a prompt retraction, correction or public or private apology, but the media turned down nearly 80 percent of the plaintiffs' requests.

The MLRC found that about 90 percent of all seriously litigated media libel cases never go to trial. For most media organizations, it is not the threat of a large settlement that is costly, it is the huge cost of successfully defending itself in court. Even the simplest libel action can cost tens of thousands of dollars to defend before the case ever comes to trial. A tenacious plaintiff or an unsympathetic judge can easily increase pre-trial costs to hundreds of thousands of dollars.

But there is a remedy, and it's called the Uniform Correction Act (UCA). Under the UCA, a publication that publishes a prompt and full correction for an erroneous story can be shielded from paying punitive damages or damages for loss of reputation. A libel plaintiff would have about three months to request in writing that a correction be published. The publication then would have up to 45 days to publish a correction. If the plaintiff fails to make a timely request, the publication would still be able to run a correction at any time up to trial. Although a lawsuit still can be filed, a publication complying with the UCA could be required only to pay the actual out-of-pocket economic loss that the plaintiff proves to be attributable to the false item.

The UCA was drafted in the 1990s by the National Conference of Commissioners on Uniform State Laws, a group of judges, law professors and lawyers representing all states. They work to develop state laws with uniform provisions. The UCA has been endorsed by the Associated Press Managing Editors, the American Society of Newspaper Editors and the Society of Professional Journalists, but only North Dakota has adopted it.

We think the UCA would help every publisher, broadcaster and Web site to defend itself against libel cases and we would encourage the Vermont Legislature to introduce this legislation in the coming year.


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