The trial in the <u>libel case</u> filed in London by film director Roman Polanski over a Vanity Fair magazine article is expected to begin the week of July 18. The July 2002 article described how the

The trial in the libel case filed in London by film director Roman Polanski over a Vanity Fair magazine article is expected to begin the week of July 18.

The July 2002 article described how the director, whose wife Sharon Tate was viciously murdered at the direction of the infamous Charles Manson in 1969, flirted with a Swedish woman in a New York restaurant while on his way to his slain wife's funeral in Los Angeles.

One passage, reproduced in court documents, quotes him promising the "Swedish beauty": "I will make another Sharon Tate of you."

In fact, both sides in the case now accept that Polanski was not at the restaurant en route to Tate's funeral, but was there within three or four weeks of the murder.

Vanity Fair, however, is fighting the libel action.

While certain aspects of defamation law are similar in many parts of the world, there are some important differences between U.S. law and U.K. law that make a London trial more appealing to celebrities.

In the United States, each state has its own defamation law. However, there are certain basic points that are common to all the laws.

The following is a general summary of defamation law (for lawyers who don't remember this from law school and for non-lawyers) and some points of distinction in the United Kingdom for those who may be following Polanski's case.

THE LAW OF DEFAMATION: Defamation is the generic term that includes two kinds of legal wrongs: slander and libel. In general, slander is defamation that is spoken and libel is defamation expressed in written form or affixed in something tangible, such as a magazine.

Several critical elements are necessary to prove defamation. For someone to win a lawsuit against a person or company for defamation in most parts of the world, some questions must be answered.

First, there must be "yes" answers to the following questions:

  • Does the statement seem to be expressing a fact rather than an opinion? Only those expressed as a fact can be the basis for a suit.

  • Is the statement false? Truth is a defense.

  • Is the false statement defamatory? In most countries, a defamatory statement is one that tends to harm the reputation of the person in such a way that it lowers him in the esteem of the community or deters other people from associating or dealing with the person -- the statement tends to diminish others' respect, goodwill or confidence in the person, or it creates derogatory or unpleasant feelings or opinions about the person.

  • Is the statement about the person who claims to be harmed by the statement -- is it about the plaintiff?

  • Was the statement made to someone other than the plaintiff? It must be communicated to someone else.

  • Did the communication of the statement to others harm the plaintiff's reputation, occupation or business? There must be some actual harm that occurred -- more than merely hurting someone's feelings.

  • Is the person being sued at fault for the harm?

Second, the answer to the following question must be "no":

  • Is the person who made the statement protected from the defamation lawsuit by some kind of legal privilege or other aspect of the law?

In the United States, there are different rules when it comes to statements made about private citizens, private citizens who are involved in a public controversy, and public officials or public figures. Generally this is because public figures must accept greater public scrutiny of what they do, and they enjoy greater access to various channels of communication -- like the press -- that allows them the opportunity to contradict lies or correct errors that private citizens may not have.

PRIVATE CITIZENS: Someone who defames a private citizen often does not have to act negligently to be liable. In fact, publishers who act conscientiously and merely publish someone else's defamatory statements about private citizens who are not part of a public controversy may be liable.

LIMITED PUBLIC FIGURES: Normally the defendants in a defamation suit must be shown to be negligent -- such as failing to conduct a reasonable amount of investigating before communicating the information -- before they will be liable for a defamatory statement about a private citizen that becomes involved in a public controversy -- a "limited public figure."

To determine if a person is a limited public figure, often the following must be true:

  • There is a realistic expectation by the writer/publisher that the person's involvement will have a major impact on the controversy.

  • The person is more than a bystander or an observer.

  • It is foreseeable that the controversy, or its resolution, will have a substantial impact on more people than just the actual participants in the controversy.

  • Under some states' laws, the person must voluntarily become part of the controversy before he will be a limited public figure.

PUBLIC FIGURES: In the United States, anyone who writes a statement that defames a public official or a public figure is at fault only if the statement is written with actual malice.

In general, this means that the person writing, editing or publishing the statement either knew, at the time of writing or publishing it, that the statement was false or that they acted with reckless disregard as to whether or not the statement was false.

Reckless disregard could include such circumstances as hearing that a statement might not be true, learning that the source of the information isn't reliable, or hearing contradictory statements that cast serious doubt upon the truth of the statement. Despite all this, the they write and publish the statement anyway.

Public figures are not necessarily public figures for all purposes, however. There may be parts of their lives that should be private, and courts often protect that privacy.

OTHER COUNTRIES: In England, defamation laws are similar to those in the United States, except they do not distinguish between public figures and private figures.

Writers and publishers might be liable for defamation even if they check out all the fact thoroughly. This is one reason that some famous celebrities flock to London to sue international magazines under England's laws. Winning a lawsuit there is much easier to do than in the United States.

The defamation laws of Australia, Canada, France and Germany are similar to those in the United States except that most of these countries, like England, do not distinguish between public figures and private ones. Some of them, such as France and Germany, severely punish those who publish defamatory statements about their citizens.

PRIVILEGES: In the United States, some people have legal privileges that prevent them from being found liable for defamation. They cannot be held liable for any defamatory statements they make under certain circumstances.

These people include the following:

  • Anyone who makes a defamatory statement with a person's consent (such as comments made during a celebrity "roast").

  • Participants in judicial proceedings (judges, lawyers, witnesses, jurors) regarding statements made that were relevant to those proceedings. This may not include statements made during press conferences, however.

  • Participants in legislative proceedings.

  • Executive and administrative officials.

  • Spouses in their communications with each other.

WHO CAN BE SUED: In the United States, a person or a company can be sued for defamation even if someone else makes the false statement. Often, the person who is liable is not only the initial communicator, but may also be all those who publish or distribute the statement. The person being sued could even be someone who reprints or republishes a statement from another publisher.

The person who speaks or write the statement -- the author -- will normally be responsible for a defamatory statement. Others who might share the responsibility include editors who review and revise content.

Publishers may also share the blame for providing the libelous statements to the public. Most courts permit publishers to rely upon professional third parties, such as news wire services and freelance writers, without being held at fault for republishing a defamatory statement.

England's Defamation Act of 1996 defines people who may be liable for defamatory content originated, edited or published by them. They include the following:

  • The author, defined as an originator of the statement that the he intends to be published.

  • The editor, which is a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it.

  • The publisher, meaning a commercial publisher.

Others may still be sued for defamation in both countries; however, they have a defense if they can show that they took reasonable care in relation to its publication and did not know, and had no reason to believe, that what they did (or failed to do) caused or contributed to the publication of a defamatory statement.