Report shows press faring better in libel, privacy cases

Wednesday, March 14, 2001

Fewer libel and privacy cases were brought against news-media organizations, and media defendants won a greater percentage of cases in 2000 than in the past two decades, according to the 2001 Report on Trials and Damages.

According to the report, released late last month by the New York City-based Libel Defense Resource Center, there were 11 libel, privacy and related trials against the press last year. The average number of trials for the 1990s was 17.9 per year. In the 1980s the average was 26.1 trials a year.

Media defendants won 46% of the trials in 2000 (five of 11), up from a third of the 12 trials in 1999 and above the 38% win rate for the 1990s and 35% for the 1980s.

Jane Kirtley, professor of media ethics and law at the University of Minnesota, attributes the decline in the number of media libel cases to the U.S. Supreme Court's reaffirmation of First Amendment-guaranteed press freedoms.

“Despite concerns to the contrary, (the high court) has not retreated from the principles of New York Times v. Sullivan, which gives the strongest protection in the world to the media when they are sued in U.S. courts,” Kirtley said.

She added that the difficulty in winning large libel awards also may have contributed to the decline.

“Plaintiffs' lawyers have finally grasped that it is virtually impossible to obtain a large libel judgment or to retain it through the appeals process,” she said.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, agreed.

“Plaintiffs' attorneys have realized that libel cases are difficult to win,” Dalglish said. “They take a lot of hard work, they're expensive and the media will spend a lot of money to defend them.”

Another factor that contributes to the decline in media libel suits is the increased education that journalists are receiving in libel law, Dalglish said. “Journalists are careful people,” she said.

Although the number of libel suits declined last year, the average and median damage awards against the media in 2000 were among the highest in the past 20 years, the report states.

Kirtley says that increase is not particularly significant because it can be attributed to a $24.5 million award in a Missouri state court case, Doe v. TCI Cablevision. That case, an invasion-of-privacy claim of misappropriation, is currently on appeal.

“That one skewed the total,” Kirtley said.

LDRC Executive Director Sandra S. Baron said, “We do not see the high damage awards in 2000 as necessarily foreshadowing difficult times in this new decade, but we will be taking a close look at damage awards over the next few years.”

“Because no one can seriously deny that the extensive litigation of trials and subsequent appeals, and high damage awards, throw a chill over free speech, the ability of media to win at trial, win on appeal, and keep ultimate damages low is in the long-term interest of free speech and press in this country,” Baron said.

According to the report, the average award in the six trials won by plaintiffs in 2000 was $5.6 million ——one of the highest annual averages in the 21 years the LDRC has released its report. The $2.5 million median award for 2000 is the highest since the LDRC began studying these trends.

The LDRC report also shows that media defendants successfully reduced awards in more than two-thirds of the cases they appealed.

But the report also shows that the rate at which media defendants appeal verdicts against them is declining. Twice as many cases went without appeals in the 1990s as in the 1980s, and cases were far more likely to be settled post-trial in the 1990s than in the 1980s.

Dalglish says that over the past 15 to 20 years, the press has been in the same situation concerning libel suits. “Journalist defendants continue to do well, particularly if the lawsuit is brought by a public officer or public official,” she said.

Both Kirtley and Dalglish say the number of nonlibel cases against the news media has increased. Cases involving claims that journalists have used hidden cameras or violated trespass or search-and-seizure laws are on the rise, Dalglish said.

“The media are still extremely vulnerable in the area of newsgathering,” Kirtley said.

“The (illegal-wiretapping) case pending before the Supreme Court, Bartnicki v. Vopper, may have serious implications in this area, and depending on the high court's ruling, could open the floodgates to a rash of new suits based on newsgathering — how you got the story, not what you publish,” she said.

Kirtley says the position of the media presently in the area of privacy litigation “has never been stronger.” The multimillion-dollar libel suits of the 1980s and the invasion-of-privacy suits in the 1990s seem to be “behind us,” she said.

The LDRC report contains tables, figures and written analysis of all media libel and privacy cases tried last year and updates the outcomes of cases tried in previous years. Only those trials in which a judge or jury reached a liability verdict are included in the report.

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