Legal Question in Civil Litigation in Wisconsin

Re: Libel - use of term and special cases of

Although I'm not an expert on it, Libel is an untrue

statement published with malice. I doubt it satirical

cartoons of a public figure could ever qualify.

Libel must be proven in a lawsuit at major expense

before the term applies in a legal sense.

Jay K. Nixon

Harvey,Nixon & Fisher

P.O.B. 1555, 333 Main St

Special case of Libel and use of term

I'm not licensed in Wisconsin, so this

general discussion might not conform with your local laws. Libel is an old

common-law tort, and I think most states follow similar rules.

Libel is defamation in written form (the verbal counterpart is slander). It

involves a false statement made to third parties with knowledge of its

falsity or reckless disregard for the truth, plus damage to the subject. In

some jurisdictions, a nominal amount of damage will be presumed even if the

plaintiff can't show any concrete harm.

The previous answer to your inquiry is wrong in an important detail -- libel

does not require malice in most instances of which I am aware. The major

exception is where the subject is a public figure. Since you say that you

are not a public figure (and remember -- just because you believe you aren't

doesn't mean a court will agree), then there is probably no malice

requirement.

Having said that, I should note that the author of the libelous work must

have either actual knowledge that his statements are false, or have acted

with reckless disregard for the truth. An honestly mistaken belief won't cut

it. This isn't quite the same thing as malice, though.

A fictional character can be libelous to a person on whom it is based, but

only if at least some audience members who read/see the work will know who

is being portrayed. If someone writes a terrible story about a lawyer

patterned after me, for example, but the readers have no idea who I am and

don't know that I am the basis for the character, then my reputation hasn't

suffered and I'm not damaged.

Here is where you may get into trouble. If the general public will

recognize that the character is supposed to be you, then it seems logical

that you must already be a public figure (unless the characterization is so

specific that it can lead people unfamiliar with you to believe it is meant

to be you). If only a few readers will get the joke, then your damages will

be a limited by the smaller scale of the harm.

Finally, in answer to your first question, I don't believe a court decision

is required before you can say someone committed libel. But be careful --

if you make this statement falsely and either know that it is false or act

with reckless disregard of the truth, then you yourself may be sued for

defamation!

Incidentally, if the defamatory work is marketed nationally, you may be able

to bring suit in another state. That way, you can take advantage of more

favorable laws (like higher damage awards, longer statutes of limitations,

easier evidentiary burdens, etc.) which may exist in different states. I

don't know if Wisconsin's laws are any more or less favorable than any other

state's, but this is an option.

(Depending on the residence of the defendants, they may be able to move the

case into a federal court, but that's an entirely different discussion.)

Edward Hoffman

Law Offices of Edward A. Hoffman

11620 Wilshire Boulevard, #340