What is libel?

Libel is any published communication that falsely harms a person's reputation. It can occur anywhere in a newspaper or on-line publication. There are four elements, all of which must be proven in court:

1. Publication
Plaintiff must prove the statement was communicated to someone other than the person it was about.
2. Identification
If statement in question doesn't mentions the person's name, plaintiff must prove that people who read it believed the plaintiff was the one identified.
3. Harm -- also called defamation
Plaintiff must prove the statement harmed his/her reputation in the eyes of the community.
4. Fault -- one of two standards applies.
a) Negligence: failure to exercise ordinary care. A private person must
prove this.
b) Actual malice: knowledge of falsity or reckless disregard for the
truth. A public person or public official must prove this.

How can I avoid libel?

• Confirm or verify all defamatory material.
• Make sure that questionable material can be proven true.
• Be especially careful of arrest reports, damage suits and criminal court proceedings.
• Watch out for charges, assertions and claims -- it doesn't matter whether we're saying it or we're quoting someone else directly. If we print it, we're responsible for it.
• Libel can be found not only in news stories, but also letters to the editor, cartoons, classified ads, display ads and electronic publications. Again, it doesn't matter who's saying it. If we print it, we're responsible for it.
• Words such as alleged and reported are not protections against libel.
• Be careful of unofficial statements made by police, or by court officials outside the courtroom.
• Truth is a defense. Good intentions are not. It doesn't matter how you intended something to be perceived. What courts look at is how it was perceived.
• Running a correction (the legal term is retraction) is not a defense, but doing so can reduce punitive damages if you're sued for libel and lose.

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What is copyright?

Copyright protects the owner of an original work of authorship against unauthorized use of his/her work. In a newspaper, this includes news stories, opinion pieces, photos, ads, cartoons and graphics. Generally, it's OK for a paper to quote short passages from a copyrighted story in another publication, as long as proper attribution is given. The general guideline is that the passage quoted should not be more than 10 percent of the total work.

Copyright does not protect titles, short phrases, slogans, ideas or procedures. It also doesn't protect facts. For instance, if the Chicago Tribune reports that President Clinton has signed a welfare reform bill, and you know that to be true, you can write "President Clinton signed a welfare reform bill Monday," without attributing that information to anyone. But, if the Tribune quotes Clinton and you want to use that quote, then you have to attribute it: "I feel your pain," Clinton told the Chicago Tribune.

How can I use copyrighted material?

1. Consent: getting written permission from the copyright holder. When in doubt, do this.

2. Fair use: The Copyright Act gives four factors to determine what can be used without the copyright holder's permission.

• The purpose: Are you making a profit off the material you're using? If so, you'll be held to closer scrutiny.
• The nature of the copyrighted work. Some works are closer than others to the core of what the law was intended to protect. A unique work of fiction, for example, will receive greater protection than a news story that is covered by many reporters.
• How much of the work, in relation to the whole, that you're using. Again, 10 percent has been the general rule for what's allowable (remember to attribute it).
• The effect of the use on the potential market for the copyright holder. Did your use of the material make it harder for him/her to sell the original? If so, it probably wasn't fair use.

What about cartoons?

Sometimes, cartoonists use images from popular cartoons in their own cartoons. Example: A cartoonist depicts the South Park kids joking about a local issue. This qualifies as fair use if it passes two essential tests for cartoon parodies:

1. You can't use more of an original work than is necessary to evoke thoughts of the original in the viewer's mind. An exact duplicate puts you in risky territory for copyright violation.

2. Your work can't directly affect the market value of the original work. No one should be willing to buy the parody as a substitute for the original work.

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What is obscenity?

The word "obscene" is used by critics to describe anything from unpopular opinions to profanity to adult movies. But, obscenity is a legal term. Under the Supreme Court's 1973 Miller v. California decision, a three-part test must be applied to determine whether material is obscene.

• Whether "a reasonable person applying contemporary community standards" would find that the work, taken as a whole, appeals to a prurient (lustful) interest;
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined as obscene by the applicable state law; and
• Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific values.

Material in a serious daily newspaper rarely, if ever, would qualify as obscene under this test.

What is indecency?

Indecency became a large issue in 1996 with the passage of the Telecommunications Act. The act established criminal penalties for transmitting "indecent" material or making available "patently offensive" material to a person under age 18 by means of a computer network.

The law defined indecency as any communication "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The limitation went far beyond the legal definition of obscenity. Anyone who "knowingly" transmitted such information could have faced felony charges.

The "indecency" law was challenged, and in 1997, the Supreme Court struck it down, saying the law could have been applied too broadly, to constitutionally protected speech.

Things to consider
Reporters, editors and columnists sometimes will encounter vulgar language and explicit descriptions in copy. While legally safe most of the time, here are some issues to consider:

• Is the language necessary to communicate the message of a story? Or will it divert attention from the story's primary focus?
• Is the author using certain words just for shock value without journalistic justification?
• Is there less offensive language that would communicate the same idea?

What about photos and drawings?
It's not illegal to publish nudity in a newspaper (unless the photo would be deemed obscene; see above). It is, however, not advisable in most situations. Refer to "Things to consider" above.

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What is invasion of privacy?

Privacy has been defined as an individual's right to be left alone. A person can claim invasion of privacy based on any of these four violations:

1. Public disclosure of private or embarrassing facts. This is subject to a three-part test. The material must have been:

• Sufficiently private: known only to a small circle of family or friends. Note: If something appears in court records or is said in open court testimony, it's not considered private any more.
• Sufficiently intimate: personal habits, details or history that the person doesn't ordinarily reveal.
• Highly offensive: The information must be such that would humiliate or seriously offend the average person if it were revealed about him/her.

2. False light. You have unflatteringly portrayed -- in words or pictures -- a person as something he or she is not.

3. Intrusion. This deals with how the information is gathered -- trespassing on private property, using an eavesdropping device without permission, misrepresenting yourself in order to gain access to a place or person. A reporter doing this can be sued even if the story is never published. In short: When a person is in a place where he or she has a reasonable right to expect privacy, a reporter must respect that right.

4. Misappropriation. Unauthorized use of a person's name, photo, likeness, voice or endorsement to promote the sale of a commercial product or service.

Protect yourself

The best way to protect against an invasion of privacy lawsuit is to obtain consent from your subject. Tell the person what you're going to use and how you're going to use it, then don't veer from that. And, if you intend to rely on that consent as your defense in a privacy claim, get it in writing and be sure you get it from someone with a legal right to give it.

Examples:
Landlords cannot automatically give consent for tenants.Neither can school
officials for students, employers for employees and parents for children.

The key in obtaining consent is giving the subject a clear understanding
of exactly what they are consenting to.

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