Nebraska Libel Law derives from court cases decided in this state and in the United States Supreme Court, from statutes found at Nebraska Revised Statutes '' 25-208, 25-839, 25- 840 and 25-840.01, and from the First Amendment to the United States Constitution, Free Speech and Free Press clauses.
Basically, libel law is a series of checks and balances
between the concept of free speech and the concept
of the right to personal reputation. The technical
definition of "libel" is a publication of language,
the obvious meaning of which imputes to a person a
criminal act, or subjects the person to ridicule or
disgrace, public hatred or contempt, and which in
essence detracts from the person’s reputation in a
substantial way.
To be actionable, a libel must be a false statement,
and in most cases it must be a statement of fact,
not a statement of opinion. Truth is a "defense,"
but actually the burden of proving falsity is on the
plaintiff or complaining party, rather than on the
defendant to prove the truth. That applies both in
public figure and private figure plaintiff cases.
In cases where a person is a public official and acting in an official capacity, or a public figure who has voluntarily put himself in the spotlight, then almost all of the applicable law derives from United States Supreme Court decisions and the First Amendment to the Constitution. In those cases, particularly New York Times v. Sullivan decided in 1964, and the many cases which have explained that case, such a complaining party is required to prove that the defendant not only published a false fact, but that the defendant actually knew of the falsity or at least had very strong doubts of the truth of what was being published. That is the concept of "actual malice."
In private figure cases, the burden is still on the plaintiff to show not only that a false fact was published of him which would damage his reputation, but also that it was a result of some degree of fault although not fault so extreme as "actual malice." In most states, it is necessary for the plaintiff still to prove that negligence on the part of the publisher resulted in that publication of the falsehood.
The Nebraska Supreme Court has not yet defined exactly what standard will apply here but one should assume that if it can be proved that your reporters, editors and/or publisher breached the normal professional standard of care in gathering, editing and publishing a news or informational item, then if it is false, a private figure who is damaged thereby might succeed in a libel case. In other words, assume that mere negligence may well become the standard of fault required to be proved in Nebraska. Nevertheless, it should be understood that a totally innocent error where due care was used and yet the error still occurred, is not actionable in libel. Some fault has to be proved.
Libel or slander
In an action for a libel or slander it shall be sufficient
to state generally that the defamatory matter was
published or spoken of the plaintiff, and if the allegation
be denied, the plaintiff must prove on the trial the
facts showing that the defamatory matter was published
or spoken of him.
The truth in itself and alone shall be a complete defense unless it shall be proved by the plaintiff that the publication was made with actual malice. Actual malice shall not be inferred or presumed from publication.
In an action for damages, the plaintiff shall recover no more than special damages, unless correction was requested and was not published. The term special damages, as used in this section, shall include only such damages as plaintiff alleges and proves were suffered in respect to his or her property, business, trade, profession or occupation as the direct and proximate result of the defendant’s publication.
Defenses After Litigation is Filed
The Story Was Substantially True.
The Publisher Used Due Care to Avoid the Error but it Inadvertently Occurred Anyway.
The Story was Essentially Opinion, not Assertions of Fact.
Absolute or Qualified Privilege.
There is an absolute privilege in very few cases
for newspapers to print libels. Senators have an absolute
privilege when they are on the floor of the Unicameral,
and persons reporting alleged wrongs to professional
supervisory bodies such as the bar association, etc.,
have an absolute privilege. Lawyers and witnesses
have a privilege also during the course of legal proceedings
to make statements that might otherwise be libelous.
Frequently, however, newspapers are given a "qualified
privilege"; that is, a privilege to print something
otherwise libelous in the absence of having actual
knowledge of falsity, or having an intention to injury
someone. A qualified privilege attaches to the printing
of information taken accurately from any public record,
at least where one does not know it to be false.
Retraction.
This defense is a partial defense, limiting damages
to special or out-of- pocket losses except where malice
is proved against the publisher.
No Actual Damage to Reputation Proved.
Plaintiffs frequently, indeed almost uniformly, exaggerate
their loss of reputation for strategic, litigation-aimed
reasons.
If the Plaintiff is a Public Figure or Public
Official, the Lack of Knowledge of Falsity, or Lack
of "Malice" in the Constitutional Sense, is a Defense.
(Burden of proving such malice is always on the plaintiff.)
Reportorial Privilege. (Correct quotation
from a reliable source).
In this regard, attribution is extremely important
both as a matter of preventive action and in some
cases as a defense to a libel suit after filed. In
other words, it may be defensible to quote a highly
reputable source of information, even if later on
that information turns out to be false and libelous.
This defense is not commonly honored but has been
used successfully on a few occasions. It is akin to
a "privilege" to trust such a source. In some recent
cases, the reliance on an established news wire service
is deemed to be non-negligent, if an error is present
in the wire services copy.
Prevention of Libel.
Sources.
If you have only a single source and that source insists
on confidentiality, then you are in a rigorously dangerous
situation if you print reputation-injuring material.
Because if you are sued for libel, you will face the
moral and possibly legal choice of either disclosing
your source contrary to your promise, or losing the
libel case because you are unable to satisfy the judge
and jury that you used due care to find the truth.
If at all possible, obviously it is best to find a
source who will back you up, and better yet find two
sources at least one of which is unimpeachable, for
highly damaging material which must be printed. The
quality of sources is also important, which means
that their reputation, background, previous dependability,
likelihood to have true information, and similar factors
ought to be taken into account in evaluating material
which is reputation-injury.
Care with Headlines, Syntax and Captions.
It is quite possible to have a perfectly good story
turned in and then have it made libelous accidentally
by a careless headline, by an editing error whereby
the words are turned around or even typographically
changed, or where the caption of a photograph, for
example, is switched or inaccurately placed or worded.
There should be extreme care used especially with
headlines, because even though you are entitled to
the context of the whole story, a highly libelous
headline sometimes will be so damaging that even the
context will not cure the problem.
Letters to the Editor.
The publisher is liable for libel in letters to the
editor, and therefore care especially must be taken
with letters to the editor on emotional subjects,
customer complaint or "action line" stories and the
like. If highly damaging statements of fact are in
a letter to the editor about some person or company,
it is wise to treat it with care. Either find an independent
means to verify the truth of the statement, force
the writer of the letter to the editor to supply sufficient
proof, or edit out the libelous material, normally
after consultation with the writer of the letter.
Many newspapers use letters to the editor which were
signed, but the signature was withheld. The Nebraska
Shield Law permits you to withhold that name, and
that law has been tested in that context. But withholding
the name of the author simply means that the newspaper
itself will take all the "heat" in the event there
is a libel or breach of privacy case. Letters to the
editors have furnished the material for numerous libel
cases all around the country and while they are an
extremely important and necessary part of a newspaper,
in most people’s view, nevertheless they require special
attention and "libel proofing."
Jokes and Cartoons.
Sometimes the law of libel has little sense of humor.
A highly satirical joke or cartoon has occasionally
been made the subject of a successful libel lawsuit.
There is a great deal of defense allowed to newspapers
and cartoonists on the basis that they are writing
only satirically and expressing an opinion, but nevertheless
it is not impossible to make a libel case out of a
cartoon or other humorous material, if in fact it
does contain a false statement of fact injuring a
reputation. A picture could imply a false statement
of fact even though it be a mere cartoon. While there
is great protection for political criticism and public
issue humorous comment, nevertheless this is an area
where the libel-conscious editor needs to do some
good preventive work. Nationally distributed cartoons
are generally "libel-proofed" nationally, and are
relatively safe.
Balancing News Stories.
It is important where a reputation-damaging story
is about to be run to try to obtain a comment from
the subject. If the answer is no comment, print that.
If the subject denies the material, print that. If
the subject threatens a lawsuit, make very sure your
sources are verifiable and that the truth is with
you. If you can’t be confident of that, either get
legal help or work some more on the story before it
runs. By balancing news stories, one should not necessarily
attempt a balance in the terms of space given to each
side. It is simply a matter of trying to get the other
side of the story if there is one and giving it fair
play where available.
Editing.
On stories which appear to injure the reputation of
a person or business enterprise, one extra editing
even at the page proof stage may knock out a dangerous
typographical error or something that simply missed
being caught on the first rewrite. That extra editing
also would be evidence of due care and would help
avoid a claim of negligence.
Proper Use of Retraction Statute.
Under Nebraska law, even if a publisher prints a libel,
the publisher will be subject only to actual or "special"
damages, if a retraction is timely printed. Do not,
however, retract and admit fault if in fact you are
not satisfied that there was genuine error. If the
complaining party tries to prove "actual malice" against
you, the retraction statute is nullified, and your
having admitted fault may work against you in those
cases. Nevertheless, in any case where an actual error
is pointed out, whether it be for libel, or simply
for newspaper integrity purposes, the retraction statute
is extremely useful both in defusing the situation
and in limiting damages in many cases. It is a highly
valuable tool in libel prevention.
Settlement by Apology.
Closely related to the retraction statute is a settlement
done by personal apology where an error has been made.
It is important in such cases to try to bring the
matter to a close at the time the apology is rendered;
that is, try to get an agreement by letter or by witnessed
conversation at the very least, that the matter is
deemed to be at a close. It is not wise, in the author’s
opinion, to offer "nuisance settlements" on any libel
cases. Those encourage additional claims and also
encourage lawyers to start filing more cases. If cash
settlement is ever considered, it should only be after
extremely close scrutiny of the liability and damages
issues with the assistance of your insurer, if any,
and counsel.
Closing Comment on Libel
The danger of libel is a real one, even in Nebraska
where we do not allow "punitive" damages to be collected
by anyone, but it is at least as dangerous to allow
concern over libel to shut off necessary news, information
and opinion.
The Nebraska Supreme Court has been relatively favorable
to libel defendants and there are very few successful
libel cases against the records of Nebraska newspapers.
Attention to detail, special care for stories which
obviously injure reputation, and a general sensitivity
to the potential defenses and to writing courteous,
prompt retractions will defuse the vast majority of
all libel problems in this state.
Where a particular story is troublesome but it is
nevertheless highly important that it be printed,
there is almost always a way. The extra work to come
up with an additional source, careful use of language
to create a "libel-proof" way to say the truth, and
an honest attempt to balance out the story by getting
the adversely affected side’s viewpoint will permit
the newspaper to do its job without libel jeopardy.
Time Limits.
The following actions can only be brought within the
periods stated in this section:
Within one year, an action for libel, slander, assault
and battery, false imprisonment, or malicious prosecution
or an action upon a statute for a penalty or forfeiture,
but if the statute giving such action prescribes a
different limitation, the action may be brought within
the period so limited; and within two years, an action
for malpractice which is not otherwise specifically
limited by statute.
Within twenty days after knowledge of the publication,
plaintiff shall have given each defendant a notice
by registered mail specifying the statements claimed
to be libelous or to have invaded privacy as provided
by section 20-204 and specifically requesting correction.
Publication of a correction shall be made within three
weeks after receipt of the request. It shall be made
in substantially as conspicuous a manner as the original
publication about which complaint was made. A correction,
published prior to receipt of a request therefor,
shall have the same force and effect as if published
after such request.
This section shall not apply if it is alleged and proved that the publication was prompted by actual malice, and actual malice shall not be inferred or presumed from the publication.