14 Media Law multiple choice questions
well96_2009
libelpracticequestion.pptxLibel Practice Questions
Question 2: press release
(1) Publication -- Yes, clearly the allegedly libelous statements were written into a press release that was distributed to third-parties.
(2) Identification -- Not clear. Nike is not named in the press release, so the question is whether or not the context nevertheless makes clear to whom the statements refer. Because Nike is by far the largest employer of Bangladesh, and because Nike is Reebok's principal competitor, a court might conclude that there has been identification by implication here. You could make an argument for the opposite conclusion, but you should have at least noted that there is a potential problem with identification.
(3) Defamation -- Yes. Saying that a company is knowingly violating the law is certainly defamatory.
(4) Falsity -- Not clear. Technically, it is not illegal for companies to employ minors in Bangladesh, in which case the statement about Nike "knowingly violating the law" is false. I suppose, however, that one could argue that the statement, though technically false, is substantially true because the gist of the statement was that Nike was violating standards that American companies are expected to honor. It's debatable, but again you should have at least spotted the issue.
(5) Fault -- Yes. First, because Nike is one of the largest companies in the world, they would certainly have toprove actual malice. Second, you could make a strong argument that Reebok was reckless with the truth because you knew at the time you wrote the press release that Nike was not violating the law, much less "knowingly violating the law," as your press release suggested.
(6) Damages -- Yes, Nike could collect damages if it were to win this case, and because there is evidence of actual malice, Nike could also pursue punitive damages.
Question 2: statements
Publication -- Yes, his statements were broadcast to third parties.
Identification -- Not clear. The same analysis applies here that applied in the press release scenario. The plaintiff is not named. Nevertheless, a strong argument could be made that the context makes clear to whom the CEO was referring and that a reasonable viewer would put 2 and 2 together.
Defamation -- Yes. If the statements about shoddy workmanship and dirt wages are provable as true or false, they would be defamatory. However, the CEO could raise the opinion defense and argue that he was not making factual claims but merely offering his own opinion about the merits of Nike's products (generally speaking) and how they compare with his company's products.
Falsity -- Yes, but see above. Depends on whether these statements were likely to be perceived as statements of fact
Fault -- Probably. If the CEO was making factual comparisons, it is likely that he expected his statements to be interpreted literally. But again, a strong argument could be made that his statements, though highly critical, were nevertheless opinion and are not capable of being proven true or false. With respect to actual malice, we would also need more information to know whether the CEO was reckless with the truth. There is not enough information in the hypothetical to know whether the CEO knew what he was saying was false, or whether he was reckless with the truth.
Damages -- Yes, if the CEO/Reebok lose. But still an open question about punitive damages because we cannot confirm whether the CEO acted with actual malice.
Question 3:
(1) Publication -- Yes. Clearly, the information about the beating was published via a letter to the editor, which appeared in the Times -- i.e., it was distributed to third parties.
(2) Identification -- Not clear. The vague reference to "guards" without any specific identification of individual guards is potentially problematic. This raises the issue of group libel and whether a defamatory statement aimed at the prison guards can be considered "of and concerning" each of the individual guards who worked at the prison. Before we can answer this part of the question, we have to know how many guards work at the prison. Without knowing that, you could not answer this part of the question definitively. That's fine. But you should have at least spotted the potential identification problem.
(3) Defamation -- Yes. Assuming the statements are true (see next), then they are defamatory. It would lower someone's standing in the community to be accused of torturing someone else, or at least we would hope it would.
(4) Falsity -- Not clear. Even though the statements are defamatory, that is a separate question from whether or not they are true. Technically, Gamal's statement that the guards "beat and tortured my brother with night sticks" is incorrect. First, the guards did not use weapons. Second, even though they "beat" his brother, it is not clear whether they "tortured" him. Because Gamal lists these two things separately, he implies that the guards beat his brother AND did something else to him that amounts to torture. The best defense for the New York Times and Gamal, however, is going to be that the statements, though technically false, were nevertheless substantially true, and that the gist or sting of the allegation -- that the guards abused their authority in subduing Muhammad Asad. Close call, but I think the defendant's have the better argument here, particularly the New York Times (see next).
(5) Fault -- Not clear. First, we have to consider the fault standard. Frankly, it's ambiguous. Most courts would probably consider prison guards to be private figures, but others might treat them more like police officers, particularly given the sensitive role they play. Let's assume the standard is actual malice. With respect to Gamal, it would be easier to show that he acted with actual malice because he was the author of the letter and he is the one who actually saw the videotape. The New York Times is republishing Gamal's statement and must take the consequences. They adopt as their own any defamatory statements that they publish, even if they come from third parties. However, it would be difficult for the plaintiffs to show that the New York Times acted with actual malice, because they simply relied upon the statements of another person; they did not knowingly publish false information. They were perhaps negligent, but probably not reckless.
(6) Damages -- Punitive damages would be available to the guards, but only if they could prove actual malice. Frankly, they will probably not get much money out of Gamal, and they probably will not be able to prove the New York Times (the defendant with the "deep pockets") acted with actual malice. So, even if the guards win, they might not recover much in the way of damages.
