Media Law Handbook



5. Identification
3. What must a libel plaintiff prove?

4. Publication

Libel involves at least three people:  the defamer, the defamed and a third person who heard or saw the defamatory message.  Obviously, publication is not difficult to prove when a story has been published in a newspaper or on a website, or broadcast on radio, television or cable.  Reporters must recognize, however, that they can defame someone in the course of gathering news as well as by publishing news.  For example, suppose a reporter has heard rumors about a local high school principal embezzling school funds.  In an interview with the school superintendent, the reporter says, “I’ve got some reliable sources who tell me Principal X is being investigated for using school funds to purchase computer equipment for his own home.  Can you confirm that for me?”  Such a newsgathering technique could result in a slander lawsuit against the reporter, even if the rumor about Principal X is never printed or broadcast.[6]  The Alton (Ill.) Telegraph was successfully sued for libel as a result of a memo two of its reporters sent to the U.S. Justice Department suggesting that a local developer had ties to the Mafia.  No story was published in the newspaper, but transmitting the memo to government officials was sufficient to meet the publication requirement of libel law.[7] Similarly, in a 2009 North Carolina case, a federal district court held the publication element was met when a company officer submitted a draft of a proposed defamatory advertisement to an employee of a magazine even though the magazine refused to publish the ad.[8] 

The republication rule.  Republication of a libel meets the publication requirement. That means both the reporter who accurately quotes the libelous statements of another person and the publication that prints the libelous quotes can be sued along with the source of the statement.[9]  Likewise, a newspaper that prints a letter to the editor containing defamatory statements can be sued.  It is also possible that a broadcast station can be held legally liable for defamatory statements made over the air by guests on programs or members of the public during a call-in show.[10]  Broadcasters, however, are immune from libel suits for statements made by political candidates to whom they are required to provide airtime under the federal Communications Act.[11]  Because the Communications Act prohibits broadcasters from censoring candidates’ comments,[12] the U.S. Supreme Court in 1959 ruled broadcasters could not be legally liable for such comments.  Of course, many libel suits against the repeaters of libelous statements fail on other grounds, especially the plaintiff’s inability to prove the requisite level of fault on the part of the repeater.  Nonetheless, it is critical journalists realize that “I was just quoting someone else” isn’t an adequate defense in a libel suit.

In 2008, however, a federal district court in North Carolina held that when “a media outlet … includes defamatory accusations in a news report for the specific purpose of debunking them,” the media outlet would not be liable.[13] NBC’s Dateline showed some clips from the movie “Bold as a Lion,” in which the brother of a homicide victim was accused of incest and the murder of his sister. In addition, the maker of the film in an interview accused both of the victim’s brothers and her father of incest and involvement in the murder. In dismissing the libel claim against NBC, the court noted that the “two-hour television report . . . was favorable to the Plaintiffs generally” and characterized the movie maker’s “accusations as ‘bunk,’ ‘way out there,’ and ‘insinuation . . . [without] actual evidence.’”[14]

Congress created a major exception to the republication rule in 1996 when it passed a law declaring that Internet service providers (ISPs) and users of interactive computer services could not be held liable for defamatory material posted by someone else.  Section 230 of the Telecommunications Act of 1996 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[15] The provision was part of the Communications Decency Act, an effort by Congress to encourage ISPs to screen material to eliminate sexually explicit messages from the Internet.  While the U.S. Supreme Court struck down the indecency ban as a violation of the First Amendment, the provision granting ISPs and users immunity for republishing libelous statements was allowed to stand.[16] 

Thus far, most courts have interpreted Section 230 very broadly to provide absolute immunity to ISPs and Internet users for third-party postings.[17]  The seminal case, Zeran v. AOL, resulted from anonymous postings on an AOL bulletin board linking Kenneth Zeran to the sale of tee shirts, bumper stickers and other items carrying “offensive and tasteless slogans” related to the 1995 Oklahoma City federal building bombing.[18] The sham ads said to call “Ken” at Zeran’s home phone number.  Zeran received hundreds of angry and abusive phone calls, some including death threats.  Despite the fact Zeran contacted AOL and obtained a promise the initial posting would be taken down, additional postings with Zeran’s phone number continued to appear on the site.[19]  Zeran sued AOL, but the U.S. Court of Appeals for the Fourth Circuit (which includes North Carolina) took an expansive view of the immunity provided by Section 230, holding that even Zeran’s notification of AOL that the postings were false and defamatory did not remove the protection provided by the statute.[20]



[6] See, e.g., Davis v. Schuchat, 510 F.2d 731 (D.C. Cir. 1975).

[7] See T.B. Littlewood, Coals of Fire (1988).

[8] Diagnostic Devices, Inc. v. Pharma Supply, Inc., No. 3:08-cv-149-RJC-DSC, 2009 WL 2998004 (W.D.N.C. Sept. 15, 2009).

[9] See Taylor v. Kinston Free Press Co., 237 N.C. 551, 75 S.E.2d 528 (1953); Lewis v. Carr, 178 N.C. 578, 101 S.E. 97 (1919).

[10] See N.C. Gen. Stat. §99-5 (2011) (providing that a broadcaster can be held liable for airing defamatory comments by non-employees of the station if the broadcaster is “guilty of negligence in permitting any such defamatory statement”). See also Snowden v. Pearl River Broad. Corp., 251 So.2d 405 (La. App. 1971).

[11] Farmers Educ. & Coop. Union of Am. v. WDAY, Inc., 360 U.S. 525 (1959).

[12] 47 U.S.C. §315 (2006).

[13] Morgan v. Moug, No. 3:07CV374-C, 2008 WL 1733623 *6 (W.D.N.C. Apr. 10, 2008).

[14] Id. at *7.

[15] 47 U.S.C.§230 (c) (1) (2006).

[16] Reno v. ACLU, 521 U.S. 844 (1997).

[17] See, e.g., Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003); Green v. Am. Online, 318 F.3d 465 (3d Cir. 2003); Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980 (10th Cir. 2000); Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998); Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006).

[18] Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997).

[19] Id. at 329.

[20] Id. at 333.

5. Identification
3. What must a libel plaintiff prove?

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