The Nashua Telegraph published an article in 1999 about the plaintiff, Terry Thomas. It was titled, “Police Say Burglar’s Luck Has Run Out After 25 Years” and reported criminal allegations against the plaintiff, statements about his past criminal behavior, and suspicions about his connection to additional crimes. The article also included several statements about the plaintiff attributable to police officers in New Hampshire and Massachusetts.
Mr. Thomas sued the Telegraph and police officers of several towns for libel. After a lengthy procedural history, the trial court ruled, among other things, that the plaintiff was “libel-proof” and the case was dismissed. The New Hampshire Supreme Court reversed this decision and remanded the matter to the superior court for trial.
Typically, a plaintiff proves libel or slander (written or oral forms of defamation) by showing that the defendant failed to exercise reasonable care in publishing a false and defamatory statement of fact about the plaintiff to a third party, assuming no valid privilege applies to the communication. A “defamatory statement” is one that tends to lower the plaintiff in the esteem of any substantial and respectable group, even if that group is quite a small minority. If defamation is established and no privilege applies, the plaintiff may seek damages for harm to his or her reputation.
Other jurisdictions have adopted a narrow exception for “libel-proof” plaintiffs who are barred from seeking damages for libel. The Court in this decision recognized a version of this doctrine for the first time, adopting the “issue-specific” version used by the trial court below. “[W]e accept the principle that a convicted criminal may have such a poor reputation that no further damage to it is possible at the time of an otherwise libelous publication.” However, the Court warned that it should be applied with caution and sparingly. “To justify applying the doctrine, the evidence of record must show not only that the plaintiff engaged in criminal or anti-social behavior in the past, but also that his activities were widely reported to the public.” Publicity is part and parcel of the damage to a reputation necessary to trigger the application of this doctrine. Accordingly, criminal convictions alone are not enough to justify finding someone libel-proof. In this case, the Court found that because the plaintiff had received little media attention regarding his prior arrests and convictions, he was not libel-proof and he could proceed with his suit in the lower court.
The Court also addressed several other rulings of the lower court, many of which applied more to the media than to municipal police. However, an issue of interest to law enforcement personnel is the Court’s ruling on conditional privilege. A conditional privilege protects the speaker from liability for libel and may be established “if the facts, although true, were published on a lawful occasion, in good faith, for a justifiable purpose, and with a belief, founded on reasonable grounds, of its truth.” The officers in this case argued that their statements were protected by a conditional privilege because they spoke with the reporter in the course of their official duties as law enforcement officers. The trial court had applied a more restrictive test and found no privilege applied. The Supreme Court rejected that test, ruling instead that the availability of the privilege should be determined by a jury under the traditional test.
We do not know yet how this case will be resolved. However, it is interesting to note the Court’s statement that “not every statement made to a newspaper reporter by a police officer in the course of an investigation is protected by a conditional privilege … This is true even though the qualified privilege protects the need to allow public officials to speak freely on matters of public importance in the exercise of their official duties.”