A reporter, Clark Kent, writes a false and injurious article accusing businessman Lex Luthor of involvement in criminal activity. The Daily Planet newspaper prints the article on its front page. Olsen Newsstands sells the papers to the public. Slow Lane Coffee has several copies set out for its patrons. At common law, which of them are liable to Luthor for defamation? What if Luthor notifies them of the article’s falsity? Do the answers change if the article appears on dailyplanet.com and patrons view it using Slow Lane’s free Wi-Fi?
Clark Kent is on the case… or at least out to make headlines. He has published a false and injurious article accusing businessman Lex Luthor of involvement in criminal activity. Clark Kent is liable for defamation because he is the one that wrote the defamatory article. The Daily Planet prints it on the front page. Publication of defamatory matter means that a defamatory statement is communicated “intentionally or by a negligent act to one other than the person defamed.” Restatement § 577. If a person intentionally and unreasonably fails to remove defamatory matter that she knows is under her control, then that person is subject to liability for its continued publication. See Restatement § 577. Further “one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it.” § 578. Therefore, according to these rules, the Daily Planet would likely be liable because they communicated it to one other than the person defamed by posting it on the front page of the newspaper. Slow Lane Coffee would likely not be liable because under § 578, the rule states “except as to those who only deliver or transmit defamation published by a third person” and the coffee shop would likely fall under this category. They are merely transmitting the newspaper. It would be similar to the newspaper delivery person. However, if Luther notiffies them of the article’s falsity, then it is likely that the coffee shop would fall under § 577(2) and be subject to liability because the defamatory matter (the newspaper) is on their property and under their control to be removed.
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