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Protection of Opinion
the law has traditionally shielded statements of opinion from suits for defamation
in 1991 the Supreme Court ruled that a statement of "pure opinion" on a matter of public concern is protected by the FA
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Milkovich Standard
The consensus seems to be that defining an opinion statement using the single criterion of proving a statement true or false is far too conservative, that it would deny FA protection to statements that an author intended to be opinion and that a reader or viewer would assume was opinion.
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Ollman Test (4 questions to asl
- 1. Can the statement be proved T/F?
- 2. What is the common or ordinary meaning of the words?
- 3. What is the journalistic context of the remark?
- 4. What is the social context of the remark?
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Pure Opinion
tested whether astatement can be proved true or false
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Rhetorical Hyperbole
broad, exaggeratedcomments about someone or something
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Consent
when a person says that it isokay with them to have something printed
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Implied Consent
Constructed onsound legal theory, but only a handful of courts have accepted this theory
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Fair Comment
a common-law defense that protects the publication of statements of opinion
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Fair Comment and Criticism- Three part test
- -Is the common an opinion statement?
- -Does the defamatory comment focus on a subject of legitimate public interest?
- -Is there a factual basis for the comment?
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Tips on Avoiding a Libel suit
- -Try to make sure that when stating an opinion that it is understood as such (in my opinion doesn't count(
- -Don't rely on journalistic context to protect you
- -Clearly state and summarize the facts
- -Make certain the facts are true
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consent
a defense in both libel and invasion of privacy cases that provides that individuals who agree to the publication of a libelous story or the appropriation of their name cannot then maintain a lawsuit based on the libel or the appropriation
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right of reply
- "the self-defense"
- a little used libel defense that declares as immune from a lawsuit a libelous remark made against an individual in reply to a previously published libelous remark made by that individual
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implied consent
when a person comments on a defamatory charge and this response is published with the charge; or if plaintiff has told others of defamatory charges against him
constructed on sound legal theory, but only a handful of courts have accepted this theory
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actual damages
damages for actual injury - had to take off work (loss wages, medical damages {diagnosis & prescription}; injury + pain & suffering)
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special damages
specific items of pecuniary (monetary) loss as a result of the libel - have a receipt for the damages cost
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presumed damages
damages such as loss of reputation; not easily quantifiable - general damages
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punitive damages
punitive in nature; designed to punish and to deter - exemplary damages
to punish a person & warn other; depends on the nature of the claim - designed to
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Retraction
both an apology and an effort to set the record straight
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Retraction Statues
- The plaintiff must give the publisher an opportunity to retract the statement before filing a suit. If the retraction is promptly published in a place in the publication as prominent as the place the libel originally appeared, the retraction may reduce or cancel damages
- (33 states have retraction statues)
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Criminal Libel
Founded on the theory that if the state does not act the injured party may take violent action to compensate for damages
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Four Areas of Privacy Law
- 1. Appropriation of name or likeness for trade purposes
- 2. intrusion upon an individual's solitude
- 3. publication of private information about an individual
- 4. publishing material that puts an individual in a false light
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Appropriation
- taking a person's name, picture, photograph or likeness and using it for commercial gain without permission
- illegal without consent
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Right of Publicity v. Right of Privacy
Monetary // PUBLIC v. Emotional // PRIVATE
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Exceptions
- News & Information Exception (if a photo is used to news reasons it is okay)
- Doctrine of Incidental Use (if someone is in the back of a photo- not the focal point of the photo)
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Consent as a Defense
- -Written consent is usually incontestable and will stand as a solid defense in an appropriation claim
- -Written consent is not always required, especially where there is evidence of oral consent
- -Written consent may be invalid if it was given years before publication, obtained illegally or materials have been altered
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Intrusion
it is illegal to intrude, physically or otherwise, upon the seclusion or solitude of an individual
>>focus on HOW information is gathered<<
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There is no privacy in public
TRUE
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Intrusion & Publication of Information Obtained Illegally
Broadcaster not held liable for publishing material obtained from an illegal intrusion by a third party; they did note that if the facts has been different so would have been their decision. (Bartnicki)
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"Keyhole journalism"
It is illegal to publicize private information about a person of the matter that is publicized would be highly offensive to a reasonable person, and is not legitimate public concern or interest.
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publiciation
communicate the material to a single third party
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publicity
material is communicated to the public at large or to a great number of people, making it certain that the facts will shortly become public knowledge
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Private Facts
Before an invasion-of-privacy suit can be successful, the plaintiff must demonstrate that the material was indeed private.
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When private facts about a person's life have been published, a court must ask two subsequent questions:
- 1) Would the publication of the material offend a reasonable person?
- 2) Was the published material of legitimate public interest or concern?
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Factors some courts take into account in determining legitimate public concern:
- ·How much public interest or importance is there
- in the material?
- ·How deeply does publication of these facts
- intrude into an individual’s privacy?
- ·How public or private is the individual who is
- the focus of the story?
- ·Is there a nexus between the information about
- the private life and the public life?
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False-Light Privacy
- 1) publication of material must put an individual in a false light
- 2) the false light would be offensive to a reasonable person
- 3) the publisher of the material was at fault
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Fictionalization
- the purposeful distortion of the truth, usually for dramatic purposes
- >>use of fictional rather than real names (false light suit); coincidental use of real names in a novel of stage play (will not stand)
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Other falsehoods
- >False light lawsuits more typically involve simple editing or writing errors or errors in judgement. And, most false light cases result from the publication of false information about a person in a news or feature story.
- >Misuse of photos is a common problem, so pictures of people who are not involved in the story that the pictures are used to illustrate frequently succeed on false light claims
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