A&A: Is A Publisher Libel for Content of Third-Party Advertising?

Q:  One of our papers just received an advocacy advertisement critical of a couple different animal-rights organizations. Although the ad itself is clearly an expression of the would-be advertiser’s opinion, it makes a variety of factual assertions that we do not possess the ability to verify one way or the other. How, if at all, does a publisher’s liability for potentially libelous assertions change if the assertions appear in a paid advertisement, rather than a news article?

A: I am not aware of any authority in California saying that a publisher cannot be liable for defamatory material in paid advertising created by a third party.  This appears to be a question that has not been squarely addressed by California courts, and, unfortunately, a more nuanced analysis of a potential claim (or defenses) based on defamatory content in paid advertising is beyond the scope of what we can provide through this service.

While you may already know the basics of libel law, here is some information you might find helpful.  Libel, which is also sometimes referred to as defamation or slander, is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact.  In general, statements of fact, as well statements that are opinion, cannot support a libel or defamation claim.  The crux of a defamation claim is falsity.

Therefore, truth is one of the primary defenses to a libel claim because truthful statements that harm another’s reputation will not create liability for libel.  There are additional defenses as well, including statements that are purely opinion and statements protected by some qualified or absolute privilege.

When it comes to libel and defamation, there is a higher standard for public figures.  In contrast to private plaintiffs, who only need to demonstrate that a defendant acted negligently when saying or publishing a libelous statement, public officials and figures must demonstrate that a defendant acted with actual malice in order to prevail in a libel action.  New York Times v. Sullivan, 376 U.S. 254, 283 (1964).  Actual
malice requires either proof that you knew the statement or implication was false or that you published it with reckless disregard for the truth.

Generally speaking, factual assertions that raise concerns and cannot be verified can be problematic in an analysis of whether a publisher acted negligently or with reckless disregard of the truth – depending on the applicable standard.

Bryan Cave LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries.  In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.  No attorney-client relationship has been formed by way of this response.

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