N.C.P.I.—Civil 806.62

NOTE WELL: This instruction applies when the trial

judge has determined as a matter of law2 that: (1) the

statement is subject to two interpretations, one of

which is defamatory and one of which is not; or the

statement is not libelous3 on its face, but is capable of

a defamatory meaning when extrinsic evidence is

considered4 and (2) the plaintiff is a public figure or

public official, as to whom actual malice must be

shown.

NOTE WELL: A “Yes” answer to this issue entitles a

plaintiff to an instruction on actual damages. See

N.C.P.I.—Civil 806.84 (“Defamation—Actual Damages”).

A public figure or public official has to prove actual

malice to permit an award of punitive damages under

the N.Y. Times standard, and this is incorporated below

as part of the liability consideration. Showing of the

statutory criteria set out in Chapter 1D-15(a) is

required as well, see N.C.P.I.—Civil 806.40

(“Defamation—Preface”), nn. 14, 27, 30 and 31 and

accompanying text, and the standard punitive damages

instructions, N.C.P.I.—Civil 810.96 (“Punitive Damages

—Liability of Defendant”) and 810.98 (“Punitive

Damages—Issue of Whether to Make Award and

Amount”), should be utilized if punitive damages are

sought.

The (state number) issue reads:

“Did the defendant libel the plaintiff?”

A libelous statement is one which (select the appropriate

alternative):

[charges that a person has committed an infamous crime.5 I instruct

you that (state infamous crime)6 is an infamous crime.]

[charges a person with having an infectious disease. I instruct you

that [state infectious disease, i.e., HIV/AIDS, syphilis] is an

infectious disease.]

[tends to [impeach7] [prejudice8] [discredit9] [reflect unfavorably

upon]10 a person in that person's trade or profession.]

[tends to subject a person to ridicule, contempt or disgrace.]11

On this issue the burden of proof is on the plaintiff to prove seven

things. The plaintiff must prove the first six things by the greater weight

of the evidence. The greater weight of the evidence does not refer to the

quantity of the evidence, but rather to the quality and convincing force of

the evidence. It means that you must be persuaded, considering all of

the evidence, that the necessary facts are more likely than not to exist.

These six things the plaintiff must prove by the greater weight of the

evidence are:

First, that the defendant [wrote] [printed] [caused to be printed]12

[possessed in [written] [printed] form] the following statement about the

plaintiff:

(Quote the alleged statement)

Second, that the defendant published13 the statement. "Published"

means that the defendant knowingly [communicated14 the statement]

[distributed15 the statement] [caused the statement to be distributed] so

that it reached one or more persons16 other than the plaintiff.

[Communicating the statement] [Distributing the statement] [Causing

the statement to be distributed] to the plaintiff alone is not sufficient.17

Third, that the statement was false.18

Fourth, that the defendant intended the statement to [charge the

plaintiff with having committed an infamous crime] [charge the plaintiff

with having an infectious disease] [impeach the plaintiff in the plaintiff’s

trade or profession]19 [subject the plaintiff to ridicule, contempt or

disgrace].20

Fifth, that the person other than the plaintiff to whom the

statement was published reasonably understood the statement to

[charge the plaintiff with having committed an infamous crime] [charge

the plaintiff with having an infectious disease] [impeach the plaintiff in

the plaintiff’s trade or profession] [subject the plaintiff to ridicule,

contempt or disgrace].21

Sixth, that the plaintiff, as a result of the publication, suffered a

monetary or economic loss.22

Members of the jury, you will note that the plaintiff's burden of

proof as to the first six things is by the greater weight of the evidence.

However, as to the seventh thing, the plaintiff's burden of proof is by

clear, strong and convincing evidence. Clear, strong and convincing

evidence is evidence which, in its character and weight, establishes what

the plaintiff seeks to prove in a clear, strong and convincing fashion. You

shall interpret and apply the words “clear,” “strong” and “convincing” in

accordance with their commonly understood and accepted meanings in

everyday speech.

Seventh, the plaintiff must prove by clear, strong and convincing

evidence that, at the time of the publication, the defendant either knew

the statement was false or acted with reckless disregard of whether the

statement was false.23 Reckless disregard means that, at the time of the

publication, the defendant had serious doubts about whether the

statement was true.24

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find, by the greater weight of the evidence, that the

defendant [wrote] [printed] [caused to be printed] [possessed in

[written] [printed] form] the following statement about the plaintiff:

(Quote the alleged statement), that the defendant published the

statement, that the statement was false, that the defendant intended

the statement to [charge the plaintiff with having committed an infamous

crime] [charge the plaintiff with having an infectious disease] [impeach

the plaintiff in the plaintiff’s trade or profession] [subject the plaintiff to

ridicule, contempt or disgrace], that the person to whom the statement

was published reasonably understood the statement to [charge the

plaintiff with having committed an infamous crime] [charge the plaintiff

with having an infectious disease] [impeach the plaintiff in the plaintiff’s

trade or profession] [subject the plaintiff to ridicule, contempt or

disgrace], and that the plaintiff, as a result of the publication, suffered a

monetary or economic loss; and if you further find by clear, strong and

convincing evidence that, at the time of the publication, the defendant

either knew the statement was false or acted with reckless disregard of

whether the statement was false, then it would be your duty to answer

this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.