Privileges That Protect from Libel - Matter of Public Policy

"As a Matter of Public Policy, libel law has carved out special categories of statements that are considered to be “privileges” and though defamatory, they are exempt from libel actions. These privileges are designed to protect people who make the statements pursuant to a legal or moral obligation.

There are two categories of privileges. The first group has little to do with writers and authors and exists to shield persons engaged in governmental proceedings, including the judicial, executive, and legislative branches. These exemptions fall under what is known as “absolute privileges.”

The second class of privileges is called “conditional privileges” and frequently applies to writers, authors, and publishers. Unlike absolute privileges, conditional privileges require that the party making the statement acted in good faith.

There are three types of privileges in this category: statements made to protect the public interest; accurate reports of public proceedings; and the right to reply, which is often raised by authors and publishers in response to statements made against them.

It's relatively easy to avoid committing libel; all you have to do is abide by the mantra of the nonfiction writer: make certain your material is accurate and true. Since the first and foremost element for a libel suit is that the statement is false, truth is an absolute defense.

Since you may have to defend yourself in court against an accusation of libel, it is not enough that you know your statements are true; you need to be able to prove the accuracy of the statements in question. Therefore, be certain to have undertaken due diligence in all your research and fact finding and maintain records of your sources.

Some jurisdictions will absolve a defendant in a libel action if it can be shown that the statement was made in good faith but to be safe, it is best to do everything you can to ensure the accuracy of your content. You should not rely on the argument that all your facts are correct. If it can be shown that taken as a whole, the content of the statement gives a false impression, libel may be found to exist even if everything is technically factual.

Obtain Consent

A second defense against a libel accusation occurs when consent had been obtained from the plaintiff. The consent must be specific and apply to the precise words that comprise the defamatory statement.

Keep in mind that when raising the defense that consent was secured, the question of whether or not the statement is defamatory is no longer the issue. A person is free to consent to having a defamatory statement published.

To obtain consent, you should secure a release from the party providing the permission. Because the release might become the central issue in a lawsuit, although it can be verbal, it is best that it be a written document prepared by an attorney competent in publishing law or provided by your publisher.

Opinions Are Protected

Expressing an opinion cannot be subject to an accusation of libel because it is not a statement of fact — whether true or false. Consequently, you can articulate the most insulting opinion imaginable about someone and not be sued for libel.

However, do not assume that merely by prefacing your statement with something like, “In my opinion,” you can safeguard yourself from a libel suit. If your statement implies facts that are libelous, you could be held responsible for libel per quod, or libel by implication.

Name-calling by itself is insufficient to form the basis for an allegation of libel. Known by the legal term rhetorical hyperbole, these statements are similar to opinions and thus do not represent a statement of fact. However, any additional information going beyond the derogatory name can be grounds for a libel suit.

Clearly, writers of op-eds, commentaries, and opinion pieces generally can avail themselves of this defense if they are accused of libel. Writers of reviews are likewise shielded from libel suits to the extent their articles are the expression of an opinion.

However, as you saw in Chapter 14, reviews are also written to inform the reader. Consequently, if the facts presented in the review are alleged to be defamatory statements, you would need to rely on one of the other defenses to libel such as truth or consent in order to avoid liability.

Source

http://www.netplaces.com/writing-nonfiction/the-ethics-of-writing-nonfiction/defenses-to-libel-actions.htm