Media Law Handbook



6. Defamatory content
4. Publication

5. Identification

Identification is seldom at issue in lawsuits against the media.  However, there are a few pitfalls with which journalists ought to be familiar.  For example, identification can occur even if names are not used.  People can be identified through pictures, sketches, pennames, nicknames, initials and even descriptions.

A classic case in this area occurred when a New York gossip columnist wrote:  “Palm Beach is buzzing with the story that one of the resort’s richest men caught his blonde wife in a compromising spot the other day with a former FBI agent.”  Rich men and blonde women may abound in Palm Beach, but apparently former FBI agents do not.  Frederick Hope convinced the court that his friends and co-workers were able to identify him as the subject of that item because he was a former FBI agent who had recently joined the county attorney’s staff, an event that received considerable publicity.  In addition, he was able to prove that he was the only former FBI agent who “traveled in the resort’s high society circles.”[21]  More recently, a U.S. District Court ruled that a rape victim was identified in a TV news story that did not use her name but did say she was a student at Bryn Mawr, a Pennsylvania college with an enrollment of about 1,500; lived in a dorm; drove a Nissan; and had attended a party at the University of Pennsylvania shortly before the crime. The young woman sued for libel after the station reported comments of a police officer that cast doubt on the truth of the victim’s story. Noting that Bryn Mawr is a small school, the court said, “In this type of environment, it would not be surprising if some people could identify plaintiff from the information supplied in the broadcast.”[22]

Incorrect identification — carelessness in reporting names, using incorrect middle initials or addresses, or placing the wrong photo with a story — can result in successful libel suits.  For example, in 1940 a reporter for the Greensboro Record, acting on a tip from an FBI agent, examined old city directories and found listings for a Harry Roth, the name of a man who had been arrested on white slavery charges in New York.  Without any further checking, the reporter wrote a story saying the Harry Roth arrested in New York was a former Greensboro resident who “was for a time connected with the Palace Theatre in Greensboro.”  The former North Carolinian, however, was living at the time in Suffolk, Va., and had nothing to do with the white slave trade.  The N.C. Supreme Court upheld a jury award of $5,000 to Roth.[23]

Incorrect use of pictures can also result in libel suits.  In the 1930s, singer Nancy Flake sued the Greensboro Daily News when her photo was inadvertently used in a bread ad and she was identified as “Mlle. Sally Payne, exotic red-haired Venus” appearing with the Folies de Paree.  The use of her photo was sufficient to meet the identification requirement, but Ms. Flake lost her libel suit because the court did not feel the content of the ad was defamatory. [24]  (She did win on her appropriation claim, however.  See the next chapter, Invasion of Privacy and Infliction of Emotional Distress.)

Group libel.  Occasionally the media are sued by individuals who claim they suffered reputational harm because a group to which they belong was attacked, even though they were not named or specifically identified.  Most such suits are unsuccessful because the plaintiffs are unable to convince the courts the libels were “of and concerning” them.  For example, after The Boston Globe ran an editorial saying the Manchester (N.H.) Union Leader was “probably the worst newspaper in America” and was a paper run “by paranoids for paranoids,” three of the paper’s eight editors and 24 of the other 325 employees sued for libel.  The judge dismissed the suit because of lack of identification.[25]

With small and well-defined groups, though, the results can be different. In a 2002 case resulting from a televised campaign ad, the N.C. Court of Appeals held that a reference to “Dan Boyce’s law firm” defamed not only state attorney general candidate R. Daniel Boyce and his firm, Boyce & Isley, but also each of the individual attorneys who were part of the firm. “The fact that the advertisement did not specifically name each present plaintiff does not bar their suit. . . .  By claiming that ‘Dan Boyce's law firm’ had committed unethical business practices, defendants maligned each attorney in the firm, of which there are only four,” the court concluded.[26]

The wording of the charge also can make a difference.  To refer to “a member” of a group is less dangerous than saying “most members” or just the nebulous “members.”  This point was underscored in 1996 when the N.C. Court of Appeals dismissed the defamation claims of nine individuals who owned or were employed at businesses located in the Colonial House business complex in Raeford.  The nine had sued Hoke County and two county EMS officials because the officials allegedly had said “someone” at a restaurant in the Colonial House had AIDS.  The statement subsequently appeared in the Fayetteville Observer-Times and Raeford News Journal and on WTVD 11 news. “Since the alleged statements referred only to ‘someone’ in a group of nine, they clearly do not refer to some, most or all of the group,” the court noted, dismissing the defamation claims because plaintiffs failed “to show that the alleged defamatory statements were ‘of and concerning’ them.”[27]

In reaching its decision, the Court of Appeals distinguished the facts of the 1996 case from one decided nearly 80 years earlier by the N.C. Supreme Court, which had resulted from a letter saying, “I note what you say about the jury standing eleven to one; this was due entirely to whiskey and the appeal made to their prejudice.”  One of the unnamed 11 jurors accused of being swayed by whiskey and prejudice sued the letter writer and won $1,500.  According to the state Supreme Court, “It was as harmful to libel and slander the plaintiff collectively as one of the eleven jurors as it would have been to have libeled him individually.”[28]  In explaining why the Supreme Court precedent was inapplicable to the 1996 case, the Court of Appeals noted that in the earlier case “eleven of the jurors were accused of misconduct; so all of them had potential causes of action. In contrast, here the statements concern only one person in a group of nine.”[29]



[21] Hope v. Hearst Consol. Publ'ns, Inc., 294 F.2d 681 (2d Cir. 1961), cert. denied, 368 U.S. 956 (1962).

[22] Weinstein v. Bullick, 827 F. Supp. 1193, 1199 (E.D. Pa. 1993).

[23] Roth v. Greensboro News Co., 217 N.C. 13, 6 S.E.2d 882 (1940).

[24] Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938).

[25] Loeb v. Globe Newspaper Co., 489 F. Supp. 481 (D. Mass. 1980). But see Fawcett Publ’ns, Inc. v. Morris, 377 P.2d 42 (Okla. 1962), cert. denied, 376 U.S. 513 (1964) (upholding a $75,000 award to fullback Dennit Morris as the result of an article that said members of the 60-man Oklahoma University football team used an amphetamine nasal spray before games to make them more aggressive).

[26] Boyce & Isley, PLLC v. Cooper (Boyce I), 153 N.C.App. 25, 33, 568 S.E.2d 893, 900 (2002), appeal dismissed and review denied, 357 N.C. 163, 580 S.E.2d 361, cert. denied, 540 U.S. 965 (2003). See also Boyce & Isley, PLLC v. Cooper (Boyce II), 710 S.E.2d 309, 319-20 (N.C. Ct. App. 2011), cert. denied, No. 11-979, 2012 WL 425178 (U.S. May 14, 2012).

[27] Chapman v. Byrd, 124 N.C. App. 13, 17-18, 475 S.E.2d 734, 737-38 (1996).

[28] Carter v. King, 174 N.C. 549, 552-53, 94 S.E. 4 (1917).

[29] 124 N.C. App. at 16, 475 S.E.2d at 737.

6. Defamatory content
4. Publication

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