Wisconsin Lawyers Blog

Wisconsin Lawyers Sharing their Expertise

Libel Actions in Wisconsin: Notice Required

By Elizabeth T. Russell • Jan 27th, 2009 • Category: Intellectual Property Law, Newest Post

The Wisconsin Court of Appeals - District I -  has decided a matter involving the notice one must supply prior to bringing a claim for the publication of libelous matter in a newspaper, magazine or periodical. (DeBraska v. Quad Graphics, Inc., et al, January 21, 2009, recommended for publication).

WIS. STAT. § 895.05(2) contains five requirements for valid pre-suit notice. It must:

(1)  be in writing;

(2)  be directed to those alleged to be responsible or liable;

(3)  specify the article and statements therein which are claimed to be false and defamatory;

(4)  contain a statement of what are claimed to be the true facts; and

(5)  be given before any civil action is commenced.

At issue in DeBraska was whether the plaintiff had or had not properly delivered a statement of what he claimed to be the true facts. Plaintiff attempted to satisfy the “true facts” requirement by referencing the actions of a third party; plaintiff also tried to shift responsibility to the defendant, citing the “reasonable diligence” requirement of WIS. STAT. § 895.05(2). Neither argument prevailed, and the Court of Appeals directed the trial court to enter jugment on the pleadings dismissing plaintiff’s complaint with prejudice.

As the concurrence in this matter demonstrates, a § 895.05(2) analysis is extremely fact-sensitive and vulnerable to conflicting interpretation. Attorneys would be well-advised, therefore, to craft pre-suit libel notices with the utmost care and clarity.

Elizabeth T. Russell is is a solo practitioner. Russell Law helps businesses protect their most important assets by focusing on intellectual property issues, specifically copyright, trademark and internet law. Elizabeth also enjoys a vibrant arts and entertainment law practice. You can contact Elizabeth at: Phone: (608) 833-1555 E-mail: Website: www.erklaw.com Address: 402 Gammon Place, Suite 270, Madison, WI 53719
Email this author | All posts by Elizabeth T. Russell

Leave a Reply