SELECTED LIBEL TOPICS REGARDING A MEDIA DEFENDANT UNDER OREGON'S RETRACTIONS STATUTE

When the complaint, as here, on its face involves a media production, then the burden is upon the plaintiff to plead sufficient facts to either bring the matter within ORS 30.155, or to show facts why ORS 30.155-.175 does not apply.
ORS 30.155 provides:

Damages recoverable for defamation by radio, television, motion pictures, newspaper or printed periodical. Except as provided in ORS 30.160, in an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff may recover any general and special damages which, by competent evidence, he can prove to have suffered as a direct and proximate result of the publication of the defamatory statement.

ORS 30.160 When general damages allowed. (1) In an action for damages on account of a defamatory statement published or broadcast in a newspaper, magazine, other printed periodical, or by radio, television or motion pictures, the plaintiff shall not recover general damages unless:

(a) A correction or retraction is demanded but not published as provided in ORS 30.165; or

(b) The plaintiff proves by a preponderance of the evidence that the defendant actually intended to defame the plaintiff.

In Holden v. Pioneer Broadcasting Co. et al, 228 Or 405, 409, 365 P2d 845 (1961), the Oregon Supreme Court expressly held that one who brings a defamation claim against the "individual agents or employees of the owner or operator of the designated types of news media * * *" must plead according to the statute.

We construe ORS 30.155-30.175 as requiring plaintiff to plead and prove, as a condition precedent to recovery, defendants' intent to defame or, in the absence of such intent, the failure to retract upon demand. Hall v. Kelly, 61 Ga App 694, 7 SE2d 290 (1940); Frye, Libel and Slander--Damages--Constitutionality of Statute Limiting Recovery of General Damages in Libel Actions, 36 Or L Rev 70, 77 (19.56). Cf., Oregon Liquor Control Comm'n. v. Anderson Food Markets, Inc., 160 Or 646, 87 P2d 206 (1939); Smith v. Laflar, 137 Or 230, 2 P2d 18 (1931); Annotation, 130 ALR 440 (1941).

Holden v. Pioneer Broadcasting Co. et al, supra. In Wheeler v. Green, 286 Or 99, 120 593 P2d 777 (1979), the Court again stated that it construed the application of the statute "to those involved in the process of publishing or broadcasting," and did not extend the statute to a private letter writer whose letter was published by a newspaper.

Under Oregon case law, libel and slander are still distinct torts, and an element of that remaining distinction is the means of publication. Libel is a written communication to another, while slander is an oral communication to another. Oregon recognizes this historic distinction. Newton v. Family Federal Savings & Loan, 48 Or App 373, 376, 616 P2d 1213 (1980), and cases cited therein; Bock v. Zittenfield, 66 Or App 97, 672 P2d 1237 (1983). It is not settled in Oregon whether a boradcast publication will be treated as a libel or slander.

Assuming for the moment that an unscripted statement is a slander, then the issue of damages remains. In order for a statement to be slanderous per se, it must impute a particular kind of unfitness for a particular trade or profession or those duties. Cook v. Safeway Stores, Inc., 266 Or 77, 511 P2d 375 (1973); Restatement (Second) of Torts, § 573 (1977). For example, Oregon cases have held that it is not per se defamatory to accuse a lawyer of overcharging, since that conduct does not specifically call into question any particular attribute about the lawyer's ability or skill in the trade.

The following discussion appears in Fowler v. Stradley, 238 Or 606, 616-17, 395 P2d 867 (1964), an overcharging lawyer case:

De Pasquale v. Westchester Newspapers, 170 Misc. 268, 8 NYS2d 829, presented facts more nearly resembling those in the case at bar than any that we have so far reviewed. In that case the plaintiff was a physician. He claimed that he was libeled in his profession by the following publication:

`Supervisor Harold W. Davis reported that when Dr. Ralph De Pasquale had declined to lower his bill of $25 for treating a welfare case late at night he had acquainted the Mayors of the three villages that other doctors might be obtained for lesser fees.'

In holding that the publication was nonlibelous, the court said:

To support the complaint it must definitely appear that the construction for which plaintiff contends is the only possible one for he is pleading no innuendo. * * *"

In resolving the issue, the court, referring to the publication, stated:

* * * They charge him with no misconduct, with no dishonesty, with no extortion, with no unprofessional conduct. They simply say that plaintiff declined to lower his bill for professional services and that the Supervisor acquainted the Mayors of certain villages that other doctors might be obtained for less money. Wherein is the libel; wherein did it necessarily imply unprofessional conduct on the part of the plaintiff, much less unfair, unjust or dishonest dealings? They certainly do not disparage his personal reputation and I think it is equally true that they do not disparage or prejudice him in his profession. There are no words that attacked either by direction or indirection, his professional ability or indeed, his professional ethics. There is nothing in the article from which a casual reader could gather that the services rendered by the plaintiff were not worth the amount charged by him. Members of a profession have varying standards of charges according to their standard, experience and the character of their patients or clientele. As a general proposition, to damage a person's reputation, the words spoken must impute a general misconduct. That is certainly not present in the instant case.

It is now our duty to determine whether the comments that the defendant Morris wrote upon the plaintiff's letter amounted to libel; that is, that it ascribed to the plaintiff "conduct, characteristics or a condition incompatible with the proper conduct of his * * * profession * * *." We have noticed that the meaning of a publication is that which the reader correctly or mistakenly, but reasonably, understands it to have.
* * *
In the case at bar the publication referred to only one charge that the plaintiff had made for her services. As we have seen, it made no criticism of that charge except to suggest that it was more than "the going fee." The publication attributed to the plaintiff no evil purpose and no lack of fitness for the practice of the law.