Entertainment Law

defamation in a written or other graphic/published form

TV and radio broadcasts

spoken defamation

defamation concerning a business or its product

• libel
• slander
• business/product

• published or spoke
• a false statement
• that was defamatory
• concerning the plaintiff
• while acting with either actual malice or negligence
• damages

when one person, in addition to the writer and the person defamed, sees or hears the material and that person understands the statement to be defamatory

mass media

they knew or had some reason to know of the defamation

truth

substantial truth

does the proven truth leave a different impression of the plaintiff in the minds of the jury than the impression created by the defamatory falsehood?

example: story that XYZ was arrested for heroin, but really it was cocaine (not a different impression)

courts protect statements of opinion under the 1st amendment or for practical reasons

• precision of language
• verifiability
• context, including cautionary language
• type of writing or speech

imply false statements of objective fact

a communication is defamatory "if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons for associating or dealing with him, or if it tends to expose him to public hatred, contempt, or ridicule"

defamation per se

commission of a crime, loathsome disease, professional misconduct, sexual misconduct, racism, financial ruin

phony, cheat, crook, liar

law presumes that reputation is damaged, so plaintiff can recover without proof of injury

must be capable of being harmed

parody/satire

reputation must be capable of being harmed

"concerning the plaintiff"; others must reasonably understand that the plaintiff is the one referred to

• name
• nickname
• photograph
• references that would identify only one person

• individual
• group
• friends and family
• deceased individuals

• actual malice
• negligence

• anyone elected
• other gov't officials if
• - he/she has a substantial responsibility for or control over governmental conduct
• -does public have an interest in the qualifications and performance beyond that for all governmental employees?
• -publication is about the official's job responsibilities or performance

• general-purpose public figure
• limited-purpose public figure

• public figures for all purposes and all contexts
• household names
• judged from the perspective community in which the story was published

individuals that have voluntarily thrust themselves into the forefront of particular public controversies (that existed before the publication) and must be actively seeking to influence public opinion and have access to communication channels necessary to do so

• controversy at issue is "public" in that the issue's resolution will have widespread effect
• plaintiff has more than a trivial or tangential role in the controversy
• alleged defamation is germane to the plaintiff's participation in the controversy

actual malic

knowledge of falsity or with "reckless disregard" for the truth

• focuses on the speaker's attitude toward the truth
• defendant must have actual, subjective doubt about the truthfulness of the statement
• not synonymous with ill will, spite, or evil motive
• must be proved by clear and convincing evidence

negligence

failing to do what an ordinary reasonable person would do in similar circumstances

• that which an ordinary, reasonable person would do under similar circumstances
• jury or judge is to determine how the reasonable reporter/author/writer would have acted, if the defendant is below this standard then there is negligence

• general
• special
• punitive

• for hurt feelings, mental suffering, or anguish
• within discretion of jury/judge

• loss of employment, lost income, loss of earning capacity
• always needed to be supported by evidence in order to be entitled to special damages

must be established by clear and convincing evidence that defendant acted with actual malice, fraud, or gross negligence

• absolute privilege
• qualified privilege

• can't libel someone while speaking in a legislative or judicial forum (protects legislators, lawyers, and witnesses)
• official communications or statements by public officials are also privileged
• employer/ee communications
• credit rating reports
• personnel recommendations

an individual to completely, fairly, and accurately report what happens at a governmental or judicial proceeding

publisher is acting as the eyes and ears of those not in attendance

a report's official parts, not the outside sources

• statements can not be made in actual malice
• issues must be of public interest and within scope

• not in texas
• gives defendant an opportunity to retract story before the suit can be filed
• retraction must be as prominent as alleged defamation

• not in texas,
• "Strategic Lawsuits Against Public Participation"
• attempts by the wealthy to silence press or critics through threats of litigation
• if statement at issue arises from an issue of public concern, plaintiff must show a probability of success before suit can proceed
• atty fees awardable