%%%%%%%%%%%%%%% Editorial Board of CBS Incident Committee %%%%%%%%%%%%%%% Saturday, June 25, 1994 (No. 8) ============================================================================= *** Part III. & IV. Activities and Suggestions *** ============================================================================= Contents # of Lines ----------------------------------------------------------------------------- Letters from netters 1. The law of libel, a brief introduction (by Herb Ho).....................84 2. Should we have a law suit? (From Herb Ho)...............................40 3. Boycott CBS and its advertisers (From William Deng).....................14 4. Mobilize local Chinese students and scholars (From Hu, Jian)............14 ============================================================================= ----------------------------------------------------------------------------- 1. The law of libel, a brief introduction (by Herb Ho).....................84 ----------------------------------------------------------------------------- Disclaimer: The following is provided only for reference of the CBS Incident Committee. It is not a formal legal opinion. Defamation is an intentional false communication that tends to injure someone's reputation, and thus to diminish the esteem, respect, goodwill or confidence in which that person is held, or to arouse adverse, derogatory or unpleasant feelings or opinions against that person. Conversely, a communication is defamatory if it tends either to lower someone's reputation in the community or to deter third persons from associating or dealing with that person. Defamation comes in two forms: libel and slander. The former is usually expressed by print, writing, pictures, or signs, and the latter is usually expressed orally or by transitory gestures. Libel is an accusation in writing or printing against the character of a person which affects his reputation, in that it tends to hold him up to ridicule, contempt, shame, disgrace, or obloquy, to degrade him in the estimation of the community, to induce an evil opinion of him in the minds of right-thinking perons, to make him an object of rproach, to diminish his respectability or abridge his comforts, to change his position in society for the worse, to dishonour or discredit him in the estimation of the public, or his friends or acquaintances, or to deprive him of friendly intercourse in society or cause him to be shunned or avoided, or where it is charged that one has violated his public duty as a public officer. Libel can entail either criminal or civil liability. To establish criminal libel, one must prove that the publication of defamation is both malicious and lasting. In other words, the publication of defamation is not criminal, whether or not it involves civil liability, if it was not done with a malicious intent for a durable period of time. Criminal libel is a misdemeanor, not a felony, and as such the punishment usually does not include prison terms in a penitentiary. It appears that to constitute civil libel, defamation does not have to be of a durable nature, nor does it necessarily have to be malicious. But in the latter regard, a difference is made depending on whether the plaintiff (the party that brings the action) is a public official. In virtue of the First Amendment that guarantees the freedom of speech and press, the media are constitutionally privileged to make misstatements of facts or unjustified comments about the conduct of public officials, unless they were published with "actual malice," which means that the defendant published the material either knowing it to be false or being wilfully blind to whether it is true or false. While it was in the past (by common-law rules) up to the defendant to disprove fault, a number of the US Supreme Court decisions have switched the burden of proving the defendant's "actual malice" onto the plaintiff. If the plaintiff is somebody other than a public official, the media cannot claim the constitutional privilege as they can with public officials. Exactly what constitutes libel may vary from state to state, as libel law is a state, not a federal, jurisdiction. But in fashioning their their libel laws, the state legislatures cannot impose liability without fault. The absence of constitutional privilege means that misstatements of facts or unjustified do entail liability; the constitutional requirement of fault means that the defendant can evade the liability if s/he can show the publication of the material, even if false, was done without fault. In such a case, the plaintiff must first prove either the facts are not true or that the comments are not justified. Then it is up to the defendant to show the lack of fault on his or her part, even if the published material is false. Thereafter, if the plaintiff can demonstrate the defendant's fault, then the defendant cannot disprove it to avoid the liability. You may or may not have to show damages to build up a libel case, depending on whether the alleged defamation is libellous per quod or libellous per se. A publication that is open to two or more interpretations can only be libellous per quod, which means that the plaintiff must prove that the publication, though not necessarily defamatory in itself, is injurious in effect when considered in connection with innuendo, colloquium, and explanatory circumstances. A publication is libellous per se if it is defamatory on its face or can be nothing but defamatory. In such a case, the plaintiff does not have to prove damages, as the law presumes the anyone so defamed must have suffered damages, making it possible for damages to be recovered without the damages being shown. Whether a publication is libellous per quod or libellous per se is a matter of construction for the court.-- ------------------------------------------------------------------------------ 2. Should we have a law suit? (From: Herb Ho)...............................40 ------------------------------------------------------------------------------ First, whether we can win or not, a lawsuit is one of the few powerful signals that we can hope to send to CBS to say that we do not accept its slandering. In other words, the filing of the lawsuit itself is important, since it can effectively show that we do take the matter seriously. Second, the lawsuit will itself make news to the media and thus generate the publicity that we so much need and desire. With some good public relations work, we can provide a news peg for the journalists every step of the way, making it expedient for the media to write their stories. On the whole, sustained media attention will only do us more good than harm. Third, the lawsuit will put pressure on CBS to take us seriously. The best thing that can happen to us is that CBS retract its infamous story and apologize publicly to the Chinese community. As the lawsuit drags on (a lawsuit of this nature usually takes a long time to conclude), CBS may find it in their interests to settle the matter out of court by "voluntarily" redressing the wrong that it has done. Fourth, it is not out of the question that we win. Mi Mi's concern over the proof of "intent" is understandable, but may not be entirely warranted. Intent in the eyes of the law does not always require the element of deliberateness, as Mi Mi seems to have assumed. Recklessness and wilful blindness to the nature or consequences of one's action are often equated with intent by the court. Besides, since we as plaintiffs are not public officials, CBS will have to bear the burden of proof, which means once we prove that we have suffered damaged or that the publication was libellous per se, it will up to CBS to disprove intent, not up to us to prove it. The more problematic issue is whether we can by proper rules of construction establish that the CBS story was libellous per se. If we cannot, we will have to demonstrate damages, which can be something that everyone knows about but few can sufficiently prove in the court of law. ----------------------------------------------------------------------------- 3. Boycott CBS and its advertisers (From William Deng).....................14 ----------------------------------------------------------------------------- I don't think we can get 200,000 to boycott CBS, 20,000 is more likely, which will only lower CBS' rating by 0.01% rather than 0.1%, or a 0.15% rather than a 1.5% present change out of the current 7% rating. This insignificant change is not worth our effort. Instead we should focus our effort on boycotting those big firms advertising on CBS. First we should ask them to put pressure on CBS because they are CBS's rice bowls. If CBS fails to apologize and those firms keep doing business with CBS. We will boycott those firms in USA and mainland China. Those firms are very concerned about their public images, and the potential huge market in China. Besides, a loss of 20,000 customers is very significant while a loss of 20,000 audience is almost nothing. If we want CBS to take our action seriously, boycott CBS's customers (those firms) not just CBS itself. If CBS doesn't feel the economic pain, it wouldn't give it a damn. ----------------------------------------------------------------------------- 4. Mobilize local Chinese students and scholars (From Hu, Jian)............14 ----------------------------------------------------------------------------- I have a suggestion. It seems better to release an open letter to local Chinese Students and/or Scholars Association (LYH and other professional CSS organizzation), recruiting the signatures of CSSAs (with the presidents's name on representation), rather than carry out a survey. The nationwide survey has been proved to be very difficult in terms of both practice and figuring out significant effect in argument. Calling for the signatures of local CSSAs would be more influential and easier to do. If we have hundreds universities' signature or even just one hundred, the influence would be great enough to have NYT report it, especcially when the major universities get involved. It would also provide more persuading evidence in the prospective law suit. %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%% % Editor of CBS Incident Committee: Xiangdong Shi % % Sign on/off at listserv@ifcss.org, with mailbody as: % % sub fcbs-l Firstname Lastname, or signoff fcbs-l % % Post at fcbs-l@ifcss.org % % Anonymous ftp at ifcss.org:/ifcss/Legal/cbs % %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%