Jun 11, 2010

The End of Libel? Or Just Libel Trials?

The New York Observer has an interesting article based on the premise that "libel suits appear to be going out of fashion."  The article cites statistics from the Media Law Resource Center (my former employer), and anecdotal evidence from attorneys at several "legacy media" companies (who are also MLRC members).

As stated in the article, the number of trials in MLRC's database -- which includes state and federal court trials making libel and related content-based claims against on- and off-line media entities that are presented to a jury or judge for a verdict -- does, indeed, show a decline in the number of trials: from an average of 26.6 a year during the 1980s (1980-89), to an average of 19.2 annually during the 1990s and 12.4 a year from 2000 through 2009.

It's relatively easy to track the cases that go to trial: MLRC members handle many of the cases, and such trials tend to get media coverage.  But without any practical way to track both federal and state lawsuits nationwide, it's impossible to quantify how many media libel cases are filed in the first place, and how many are resolved prior to trial.

Studies I compiled while at MLRC did take a stab at these: a study of reported cases in which there was a motion to dismiss found that the motion was fully granted in 72.9 percent of cases, and partially granted in 10.6 percent of cases. A separate study of summary judgment showed that that motion was fully granted in 78.3 percent of cases, and partially granted in an additional 6.3 percent. Neither of these studies were authoritative, because not all cases are "reported" (published in law books), and those that are published are likely appeals in cases in which these motions were granted (since, in most states, denials of these motions are not appealable).  But they do give some indication that a high percentage of libel and related content-based cases against media entities are dismissed prior to reaching trial.

Another way that cases may be resolved before trial is by a settlement.  This is impossible to quantify, and most media lawyers don't like to talk about it.  But it certainly does happen.  There are even settlements after trial, to avoid the trouble and expense of appeals.  (Of course, media defendants are more likely to offer to settle cases that they have lost at trial.)

It's also important to note what the MLRC excludes: the growing number of cases against bloggers, Tweeters, and other creators of online content that do not fit the organization's definition of "media" (a definition that I created). That's because of the purpose of the study: to measure the legal and monetary risk that a media entity faces in such a lawsuit.  Instead of including them in the MLRC study, I created a separate listing of lawsuits against bloggers.

It's probably premature to declare that the dearth of trials means "the end of libel," as the Observer headline puts it.  The number of trials against major media entities may be down, but that does not mean that the number of claims being made has ebbed. It's just that they're being disposed of before trial, or filed against different sorts of defendants.

In short, the rumors of the death of libel have been greatly exaggerated.