Libel Laws and the Truth: What If the Statement is True?

Libel Laws and the Truth: What If the Statement is True?

by Michelle Atkins, December 2009

Did you know a wedding announcement can be claimed as libelous? That's because libel applies to written material, which includes everything from political commentary to cartoons. The word libel commonly describes injury to a person's reputation but libel damages may also include emotional distress. However, libel can occur in words, pictures, graphic images, and any other publishable forms.

Is the Statement Capable of Libelous Meaning?

Generally, a statement has to be provable as true or false before it can be libelous. Opinions are out of the running for libel, so you're free to describe a bad actor as "a loser" or the local mayor as "clueless." Opinions are protected under the opinion privilege, but that has its own limitations. If the opinion is supported by inaccurate facts, it may not be protected. What the opinion privilege doesn't protect is accusations of criminal or illegal behavior, even if they're expressed as opinions. So, if you write that your state attorney is a "thief and a felon," you're asking for trouble.

You are also on dangerous ground when you make false statements that you present as your opinion. Satirical or exaggerated language probably will be protected. On the other hand, if the general public might mistake the statement as an objective fact, it may not be protected as opinion. Protect yourself and avoid claims like "only a drug addict like Governor Smith would support this budget bill."

If the statement is not protected as an opinion, you may still be protected under the truth defense. A person who wishes to successfully sue you for libel must generally prove the statement is false. In most states, truth is a complete defense to a libel action. You generally can't sue if the statement in question is true, no matter how unpleasant the statement or the results of its publication.

The best way to protect yourself is to see how your state defines and tests for truth. Before making a potentially libelous claim, keep track of your documents, people, and source material. That way, on the off chance a lawsuit arises, you'll be braced to present the truth.

Who is the Subject of the Statement?

Libel standards often vary depending on whether the subject is a public figure or a private individual. A public figure, someone like Madonna, may succeed on a libel claim only by proving actual malice. That is, Madonna would have to prove the writer knew the facts were false.

A person who is not generally considered a public figure, but who has thrust himself or herself into a particular controversy, is considered to be a public figure for the limited purpose of that controversy. When Julia Butterfly Hill lived 180 feet up in a redwood tree for 738 days to protest the clear-cutting of ancient redwoods, she was a public figure during her sit-in. The libel standard applied to Hill was the same as any other public figures, so long as the statements in question pertained to the immediate controversy and not her family or personal life.

In some states, private figures are treated differently from public figures. Most states require a private figure to prove only negligence, such as a careless error, rather than actual malice. The message: the line between truth and libel isn't always well-defined, so avoid scandal with upfront fact checking or careful context.