Page 344 - Law and the Media

The Law in the United States of America
Publication
Publication takes place when the defamatory statement is communicated, either intentionally
or negligently, to a third person. It is the intent to publish, not the intent to defame, which
is important.

Although each publication of a defamatory statement is a separate publication for the
purpose of awarding damages, most American courts have adopted the ‘single publication’
rule under which all copies of a newspaper, magazine or book are treated as one publication.
However, damages are still calculated by looking at the total effect of the published
defamatory statement on all those who read it.

A ‘primary publisher’ such as a newspaper or television station will be held responsible to
the same extent as the author of the defamatory statement. For example, the Washington Post
would be liable to the plaintiff to the same extent as the journalist who wrote the defamatory
story published in its pages.

A ‘republisher’, in other words someone who repeats a defamatory statement, will be held
liable on the same basis as a primary publisher even if the republisher repeats the source or
makes it clear it does not believe the statement. If the New York Times published the
defamatory story previously published in the Washington Post, it would be liable on the same
basis as the Washington Post and the journalist who wrote the article, even if it had stated
that the article was republished or acknowledged that the article was not truthful.

Matter of public concern
Where the defamation relates to a ‘matter of public concern’, the plaintiff must also prove
the falsity of the statement (Philadelphia Newspapers, Inc v Hepps (1986)) and fault on the
part of the defendant.

The type of fault the plaintiff must prove depends on the status of the plaintiff:

A private person must prove negligence regarding the falsity of the statement
A ‘public official’ (Sullivan v New York Times (1964)) or a ‘public figure’
(Associated Press v Walker (1967)) must prove malice.

The definition of ‘public figure’ is very broad. It encompasses someone who has achieved
‘pervasive fame or notoriety’ such as a famous film star or celebrity sports star, business and
community leaders and politicians, or someone who has ‘voluntarily assumed a central role
in a public controversy’ such as a well-known environmental or political activist (Gertz v
Robert Welsh, Inc (1974)).

Malice
Malice was defined in the well-known case Sullivan v New York Times (1964) as knowledge
on the part of the defendant that the statement was false, or a reckless disregard as to its truth
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