hatred or contempt. Thus, if you misstate the color of the mayor’s eyes (calling them blue when they are brown) this will not support a libel claim because, even though the statement is false, it would not tend to diminish the mayor’s reputation in the mind of a reasonable person. Fault . The maker of the statement (whether it be the reporter, the newspaper, the magazine, or the radio or television station- even if online) must have been at fault in making the statement, either by being negligent or acting with “actual malice.” These standards are discussed in more detail later. Damage . The statement must cause a provable “injury” in the form of specific monetary harm, such as lost wages, or more nebulous harm, such as impairment of reputation and standing in the community, personal humiliation, or mental anguish. Defenses to a Claim for Libel So, how do you respond to a charge of libel? As in all tort (civil wrong) actions, there are certain defenses, which shield you from liability. Those defenses are as follows: Substantial truth . Libel lawsuits often begin and end with the concept of falsity. A libel plaintiff must prove a challenged statement is false. Look at your own work. Is any given statement undeniably true, as far as you know? Maybe yes, maybe no. The law of libel, consistent with the freedoms our founding fathers envisioned, provides protection so long as the statement you published or broadcast is “substantially true,” that is, if the gist or “sting” of what you wrote or broadcast is true, then you cannot be held liable. If the error in a given statement is immaterial and the publication or broadcast would have the same effect on a reader or viewer, regardless of the error, then you cannot be held liable. Opinion . Recall a plaintiff must prove the defendant published or broadcast a statement of fact about them. A common refrain to an allegation of libel is: “but that was just my opinion!” But, it’s not that easy. It is true pure statements of opinion cannot form the basis for libel liability. So, for instance, a statement that “the City of Baltimore has confusing street signs” is just too nebulous to subject the speaker of the statement to liability. Statements that amount to rhetorical hyperbole (for example: “Candidate Alfred Jordan is full of malarkey,” or “the architect of Camden Yards must have blinders on”) likewise do not reasonably assert a statement of fact. Instead, they amount to subjective evaluations and, thus, are not actionable. But, many statements fall into the gray zone. The test to determine whether a statement is one of fact or opinion is: (1) whether the challenged statement can reasonably be verified as being true or false; (2) whether the context in which the statement is published suggests it is a subjective evaluation. Thus, saying in a sports column retired Baltimore Oriole Cal Ripken was a “sloppy” fielder at third base is the writer’s subjective assessment of Cal’s abilities and would not be actionable. Such a statement is not subject to objective verification, and the context in which it is published – a sports column – alerts the reader to expect the writer’s opinion. But, saying in a news article a businessman is a “corrupt” lawyer who “has illegally shielded millions of dollars in assets to avoid tax liability” could be proved true or false, and thus could subject the maker of the statement to liability.
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