Is it libel?

April 18, 2006 2:21 PM

Libel Filter: I am cutting and pasting this question on behalf of a friend. I have seen question in MF that are kind of similar, but I think this one has a twist.

"I apologize for not using proper names, for confidentially purposes.

My company performs services of the creative/graphic design for publications around the country. Part of my agreement with these publications is that my company name and contact information is placed in the masthead of these publications and labelled as the provider of these services (should someone reading the piece wish to contact me directly).

We recently picked up a new client, who was a startup, in a large metropolitan area (of the USA). We got this clients first publication out three months ago (we have since put their 2nd edition on the streets). Like all first time publications the edtion was short on advertisers and long on filler (the second edition had more advertisers).

A very large semi-competitor to this publication (same area, but much more broad market) savaged the publication on their website. Criticism, even if born from just jealousy or nastiness I can take, and he was swinging with both fists. Most of his criticisms were marginally accurate about editorial content, as they would be for any out-of-the-gate publication.

However, in reference to the photos in the publication he wrote, "photos, many of which were doubtless stolen off the Internet."

We purchase our stock photography from reputable photo houses. The ones that we didnt were either 1)provided by the organization the artice was about or 2) Taken exclusively by a photographer under contract by this publication to photograph the event. An event that he needed to obtain permission from the event organizers to attend and photograph.

Usually, after a publication we have worked on comes out, we receive phone calls from interested businesses. We have not received any from this publications area.

As I understand it, for something to be considered libel a statement must be "false, published (or public), and damaging", and It cant be about a public figure.

Well, this statement was indeed false, is was defiantely public, and compared to previous endeavours, it has been damaging to my company.

He did not mentionmy company's name specifically, but he had no problem mentioning the name of the publication, of which my company (who provided the photographic services, is listed prominently in the masthead.

I have an appointment with our lawyer about this on Thursday, but would like some prespective before I go in there."


Thanks all

posted by sandra_s to law & government (11 comments total)

I'm sorry, what kind of perspective do you want? You're already going to see a lawyer. Do you want an opinion on what the lawyer is going to tell you?
posted by MeetMegan at 2:33 PM on April 18, 2006

IANAL, just a former newspaper editor.

All I'll say is that I wouldn't have wanted to have written that and have to defend it to the publisher (and the lawyer.)
posted by docgonzo at 2:37 PM on April 18, 2006

IANAL either, and the lawyer you're contacting will have a definitive answer, but I think if you wanted to sue for libel you'd have to prove the damages. That might be difficult, since you can't for sure attribute the loss in business to the statement. It'd be easier if you'd worked with these sorts of publications before, and could provide evidence of what you said above (in the past people have contacted us when a publication in the field has come out, but not this time).

As a layman, I can tell you that the magazine that published the scathing remarks would lose some of my respect, if the criticisms were indeed as juvenile as you suggest.
posted by chrominance at 2:47 PM on April 18, 2006

The usual legal process is you (or your lawyer) sends a cease-and-desist love letter demanding the offender remove or amend their posting. The offender can ignore this or take it as a provocation to fight and they'll sling even more mud at you (and your lawyer) depending on how much free time they have to goad you. They will make the safe assumption that you really aren't going to waste your time and money taking this all the way to court and risk losing.

The alternate route is diplomatically explain the writer that you worked hard on the photo layouts for the client and you bought the rights to every photo and please correct your article. Don't mention lawyers and lawsuits unless you really want their eternal animosity and a drawn out court battle to come out of this.
posted by StarForce5 at 2:49 PM on April 18, 2006

If I remember correctly from my libel class, you also need to be able to prove that no one made a sufficient effort to check their facts. Other than that, it sounds like a good case.
posted by brina at 2:50 PM on April 18, 2006

brina: Wouldn't the word "doubtless" indicate that they made no effort to investigate the truth of their assertion?
posted by BackwardsCity at 3:15 PM on April 18, 2006

You should probably read up on the ramifications of the 1964 NY Times decision about libel.

Just as with the others, IANAL, but I can say that it's almost certain that you would be judged to be a "limited purpose public figure" under the rules established by that SCOTUS decision, and that means you have to demonstrate "actual malice" in order to prevail in a libel suit. "Actual malice" (a term of art which has nothing to do with rancor or hatred) is extremely difficult to prove. That's because libel cases are virtually unique among civil suits in that there's a legal presumption of no libel because of the First Amendment. You have to prove the existence of "actual malice" by "clear and convincing" evidence.

The reason for all this is that SCOTUS prefers self-help over court action. Justice Powell put it this way:

"The first remedy of any victim of defamation is self-help – using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater."

Since you have approximately the same access to the web and to readers as the competitor, you have a reasonable ability to get your message out and to counter the defamation. That's why you'd probably be categorized as a "limited purpose public figure". Therefore SCOTUS doesn't think you need to resort to the courts to clear your good name, and they've set the threshold to prevail very high in such cases so as to prevent threats of libel suits from chilling free expression.

You should also realize that under US law opinions are never libelous. If within context a statement can be interpreted as being an opinion on the part of the writer, even if not specifically labeled as such with a phrase like "in my opinion" or "I think", then there is no libel.

If the competitor actually did say "many of which were doubtless stolen off the Internet", they could reasonably claim that the use of the word "doubtless" indicates that was an opinion and not a statement of fact, in which case it would be protected speech under the First Amendment and not actionable.

Just to give a slightly tongue-in-cheek example of that, if I say "You have sex with goats" then that is a statement of fact and may be actionable. (It may also not be; there are other things you'd have to prove besides falsity.) But if I say "You seem like the kind of person who has sex with goats" then I'm expressing an opinion, and I have a First Amendment right to do so.

I think talking to a lawyer is probably wise, but don't be disappointed if he tells you that you have no case.
posted by Steven C. Den Beste at 3:20 PM on April 18, 2006

For the record, a public figure can successfully sue for libel. The standard is higher, though. Carol Burnett won a case against the Enquirer in the '70s, for example.
posted by Airhen at 8:47 PM on April 18, 2006

If this is the artice you're referring to (I'm guessing, but this is the only actual match for that quotation in Yahoo), then the comment was not actually about the magazine, but phrased as a general rule that the magazine happened to break. As a non-lawyer, I can't tell you if that makes a difference or not. Given the rest of the context, it seems to me like this is merely a sarcastic comment, aimed at disparaging the quality of the photos rather than an assertion of any actual wrongdoing on your part.

On the plus side, I guess you should be proud that the criticism of the photos seems to be less harsh than the other problems he found with the magazine.
posted by Caviar at 1:17 PM on April 19, 2006

Oh, and on rereading your original post, it doesn't sound to me like you have a leg to stand on, since there were some photos in the magazine that you did not provide, he did not name your company by name, and his comments could easily apply to those other photos.

To play devil's advocate, your lack of followup work after the fact could just as easily be atttributed to the overall quality of the publication, if it was indeed poor, and not your work specifically.

Something to consider, anyway.
posted by Caviar at 1:23 PM on April 19, 2006

If that article is the one, then then there is no doubt whatever that it is not libelous, even if you were not determined to be a "limited purpose public figure". Not only is it clearly opinion (and thus protected speech), but it's also clearly satirical. It is extremely difficult to prove libel when it comes to anything which is intended to be funny.

Hustler vs. Falwell (from about 20 years ago) is a very key SCOTUS decision on this subject. Any damage you think you may have sustained is negligible by comparison to what Larry Flynt did to Jerry Falwell, but SCOTUS decided there was no libel in that case because satire is protected speech under the First Amendment.
posted by Steven C. Den Beste at 8:58 PM on April 19, 2006