PRIOR BAD REPUTATION. A prior bad
reputation defense might prove useful to a publisher
accused of libel if it could be shown that the plaintiff
already had an unsavory standing in the community and
the defamatory statement caused very little additional
Keep in mind that these partial defenses are just
that partial. They may lessen punitive damages, or in
some cases eliminate them, but they do not excuse the
The seven complete defenses against libel charges
can absolve the publisher of all liabilities if successfully
used. Incidentally, it is important for you to note that in
libel cases, unlike other cases tried in our countrys
judicial system, the burden of proof is on the accused,
not on the plaintiff or the prosecution.
TRUTH. Truth is the best complete defense
against libel action. Some state laws read that truth alone
will suffice as a defense in a civil libel suit; others
maintain that the truth must be without malice. In
either case, the facts published must be provably true.
If the law requires truth without malice, the
defendant also must prove good intentions. Malice,
however, as judged by the courts today, does not mean
only intent to harm. The consensus appears to be that
truth without malice must be truth for a good
reason. The good reason is usually judged by
determining if the material presented is in the best
interest or concern of the public.
For example, a newspaper prints a story about a man
running for a high public office and states that the
candidate has served a prison term for embezzlement.
The statement is true, and the newspapers reason for
printing it is the belief in the publics right to know, or
the public good. The candidates history, in this
instance, would give reasonable doubt of his
qualifications for public office.
If, however, the same statement had been made
about a private citizen who was in no way connected
with the public welfare, there would have been no good
reason for publishing that information.
FAIR COMMENT AND CRITICISM. A
publisher can claim the fair comment and criticism
defense in many instances. The courts are often lenient
when fair comment or criticism is made of a political
organization or any powerful corporation; in reviews of
television programs, movies, plays and books; or in
articles dealing with officials or agencies of the U.S.
government. It has been established that one of the chief
functions of the news media is to serve as a critic of the
wielders of public or private power. The courts reason
that this function should not be arbitrarily suppressed.
Many newspapers engage in crusades against a
dishonest or bungling government and against crooked
gambling or other criminal activities. As long as a
newspaper approaches such a crusade in a responsible
manner, it is well within its rights. Every year Pulitzer
Prizes are given to individual reporters for either having
exposed private or public abuses of power, and in some
cases, having caused their confections.
PRIVILEGE. Privilege, as a defense against
libel, deals with legislative and judicial operations.
There are two kinds of privilege. One is absolute
privilege; the other is qualified privilege.
Absolute Privilege. Absolute privilege protects
those directly involved in judicial proceedings (judges,
attorneys and witnesses) and legislative matters (the
President, governors, mayors and lawmakers at the
federal, state, county and city levels). Absolute privilege
does not apply to the news media.
Qualified Privilege. Qualified privilege does
apply to the news media and affords them qualified, or
conditional, protection in reporting public and official
proceedings. The conditions for this protection are that
a story must be characterized as follows:
1. Fair, accurate and complete
2. Without malice
3. Published for justifiable ends
The one limitation of qualified privilege is that a
story must not include any obscenity. Other than that,
legislative and judicial proceedings may be reported in
their entirety, regardless of the truth or falseness of what
is said. The legal theory supporting this license holds
that the public interest in public matters should be
served, even at the expense of individual defamation.
Remember, however, that this privilege does not
cover the reporting of conventions of private
organizations, such as political parties, labor unions and
LACK OF PUBLICATION. Lack of publica-
tion as a complete defense is more likely to be used in a
libel case involving some form of personal
communication that may or may not have been seen by
a single third party. This defense could hardly serve the