- Truth is generally the best vindication against
- Abraham Lincoln1
Defamation is the act of harming another’s reputation by libel or slander and thereby exposing that person to public hatred, contempt, ridicule, or financial loss.2-7 Libel is false and negligent or malicious publication involving words, pictures, or signs.2,6 Technically and historically, libel has differed from slander in that slander was defined as defamation by oral expressions or gestures and libel was defined as defamation in print. With both libel and slander, resulting liability depends on a third party reading or hearing the defamatory words. With the advent of modern forms of communication, the distinction between these terms has become blurred because of the mix of print, audio, and video content in multiple forms of media.3(§5.01),6(p131)
Truth is considered a defense against libel in most cases.3(§5.09) However, the context of the alleged libelous communication, effect of the communication on the so-called average reader, intentions and actions of the author/writer, editor, and publisher, and location of the publication can each influence liability.3,4,6,7 For example, a statement may be truthful in isolation, but coupled with other statements or placed in a different context, the same statement could result in an overall false impression, which could result in defamation.3(§5.09) On the other hand, a statement with minor inaccuracies or omission of inconsequential details could still be considered “substantially true” and thus not be determined to be defamatory.3(§5.09) In US courts, most libel cases are difficult for plaintiffs to win. This is not necessarily the case in other countries. For example, the United Kingdom is known for libel laws that are more favorable to plaintiffs.8 Libel law is complex, and it is difficult for an author, editor, or publisher to know with certainty whether the text of a specific manuscript could be defended successfully in a libel suit.4(p152) Editors and publishers should consult lawyers with expertise in media law when concerned about risks of libel and should also carry liability insurance that covers claims for libel (see also 5.9.7, Defense Against Libel, and 5.9.8, Minimizing the Risk of Libel).
In the United States, libel law generally requires courts to balance 2 competing values: freedom of expression vs protection of personal reputation.9 Freedom of expression has its foundation in the First Amendment of the US Constitution, and this freedom has been largely assured in instances involving public officials governed by US law since a landmark Supreme Court decision in 1964.10 In New York Times Co v Sullivan,10 an elected official in Alabama sued the New York Times for publishing an advertisement that included statements, some of which were inaccurate, about police actions against students who participated in a civil rights demonstration; the elected official had supervisory responsibility over the police force about which the statements were made. After a series of decisions on this case in which it was demonstrated that some of the published statements were false, the US Supreme Court determined that a public official could not recover damages for publication of a false statement relating to his or her official conduct unless it is proven that the defendant published the statement knowing it was false or with reckless disregard of whether it was false (ie, actual malice). This decision established important protections for the press against libel claims based on First Amendment protections to ensure that debate on public issues remains “uninhibited, robust, and wide open,”6(p131),10 but more recent decisions in US courts have not always resulted in such favorable protections for the press.3,7
Libel threats and suits have been used to silence those with opposing viewpoints and censor the free flow of information. Lawsuits, referred to as SLAPP suits (the acronym for strategic lawsuit against public participation), have been used in an attempt to intimidate those who wish to publish criticism or information that could expose wrongdoing on the part of a particular industry or corporation. Even if the suit is groundless and the plaintiff eventually loses the case, a protracted and expensive legal battle may be damaging to an author, editor, publisher, or journal. For example, in 1984, Immuno AG, a multinational pharmaceutical company based in Austria, brought a $4 million libel suit against an unpaid editor of the Journal of Medical Primatology, Jan Moor-Jankowski, and the journal’s publisher.11 The lawsuit followed publication of a letter from an author who raised questions about Immuno’s plans to conduct hepatitis research in Sierra Leone, West Africa, using chimpanzees caught in the wild. Prior to publication of the letter, Moor-Jankowski had sent the letter to Immuno AG for review and requested comments and a reply to be published along with the letter. The company rejected the opportunity to reply and threatened litigation. Moor-Jankowski suggested that Immuno AG contact the author for further information, but after no response was received from the company, the Journal of Medical Primatology published the letter. After extensive and costly legal proceedings (the publisher was uninsured), the Appellate Division of the Supreme Court of New York ruled that the statements contained in the letter were either opinion or factual statements that Immuno AG had failed to prove false. Immuno petitioned for hearing by the US Supreme Court, but that petition was denied in 1991.12
Publication is an essential element for a legal action of libel.3(§5.02) In this context, publication means that the alleged libelous communication was transmitted to a third party who read, saw, or heard the alleged libelous communication.3(§5.02)
Courts have distinguished between those who publish third-party information (ie, publishers) and those who provide facilities to third parties to transmit information (ie, online service providers). Editors and publishers of scientific journals, whether publishing information in print, online, or in both media, generally review, edit, and control the information that is transmitted and delivered, while online service providers may not provide such oversight and control of third-party postings.6(p132) In Stratton Oakmont, Inc v Prodigy Services Co,13 the court held that even an online service provider could be held liable for a subscriber’s defamatory statement because the online service provider exercised “sufficient control over its computer bulletin boards to render it a publisher with the same responsibilities as a newspaper.” Thus, scientific journals are more vulnerable to libel suits than are online service providers because of the editorial control their editors typically exercise.
A publication is considered defamatory when it includes each of the following3-7:
▪ Publication to a third party (Note: there are exceptions here, such as in publication of testimony made during judicial or legislative proceedings; see also 5.9.6, Republication and News Reporting)
▪ Fault amounting to at least “negligence” if involving a private individual (ie, failing to meet the minimum standards that a reasonable person would have been expected to meet in researching, fact checking, writing, reviewing, and publishing the statement) or “actual malice” if involving a public figure (ie, publishing with knowledge that the statement is false or with reckless disregard for the truth of the statement)