Defamation

Defamation

Under common law, defamation is a cause of action that remedies the wrongful injury to a person’s reputation based on false and defamatory statements concerning them. As a matter of policy, a cause of action for defamation protects the interests of an individual’s reputation.

Defamation is when the D makes a (1) false and defamatory statement (2) of and concerning another, (3) published to a third party, (4) unprivileged, and (5) there was fault amounting to at least negligence on the part of the publisher and (6) special damages where required. 

False and Defamatory

A statement is false when it is factually incorrect and provably false, and defamatory when it tends to harm a person’s reputation in their community by exposing them to hatred, contempt, or ridicule, impairing their integrity or morality, or causing others to avoid them. Under common law, there are four different kinds of defamation:

(1) libel per se,

(2) libel per quod,

(3) slander per se, and

(4) slander.

Libel Per Se

Libel per se is a written statement which is defamatory on its face, meaning the defamatory meaning is apparent from the communication itself, without reference to extrinsic facts or inducement. Because the writing is defamatory on its face, special damages are not required. 

Libel Per Quod

Liber per quod a written statement which is not defamatory on its face and requires special damages plus extrinsic evidence to prove defamatory meaning, consisting of inducement, colloquium, and innuendo. Inducement is extrinsic facts, because of which, the words were reasonably understood to convey a meaning that defamed P. Colloquium is a formal allegation that the words spoken were of and concerning P. An innuendo is an allegation of the particular defamatory meaning conveyed by the words.

Slander Per Se

Slander per se is spoken defamation that is defamatory on its face. A statement is defamatory on its face when it fits into one of four categories of accusation: (1) criminal conduct, (2) loathsome disease, (3) unchaste behavior, or (4) business incompetence. Slander per se is actionable without proof of special damages.

(1) An accusation of criminal conduct must be for a crime of which P has not been convicted and of moral turpitude and which exposes P to social ostracism.

(2) An accusation of loathsame disease must accuse P of a permanent, lingering, and incurable disease which results in exclusion from a portion of society.

(3)An accusation of unchaste behavior applies when D imputes a lack of chastity to a woman.

(4) An accusation of business incompetence occurs when D makes a statement about P which is likely to affect P in business, trade, profession, or office, and the probability of some temporal damage is sufficiently obvious.

Slander

Slander is spoken defamation that requires proof of special damages which is pecuniary loss. Pecuniary loss is any material loss capable of being measured in money such as loss of a job, loss of customers or business income.

Of and Concerning Another

A statement concerns the P when a reasonable listener or reader, knowing the circumstances, would understand that the statement referred to P, even if P is not named directly. Generally, a large group cannot be defamed. However, if a group is so small that the matter can be reasonably understood to refer to the P, or the circumstances reasonably give rise to the conclusion that there is particular reference to the P, P can bring an action for defamation. 

Any living person may be defamed. There is no actionable defamation of the dead. Neither the estate nor relatives of the dead may recover for statements after the death. However, defamation of the dead may defame the living. Corporations cannot be defamed personally, but may maintain an action for defamation that casts an aspersion upon its honesty, credit, efficiency, or other business or moral character.

Publication to a Third Party

A statement is a publication to a third party when D intentionally or negligently communicates it to at least one person who is not the P and who understands it. An intentional communication is when the D makes a statement with the purpose or desire to publicize the statement or has knowledge to a substantial certainty that the publication will occur. A negligent communication is when a reasonable person would recognize that an act creates an unreasonable risk that the statement will be communicated to a third person but carries out the act regardless, and can also occur when a person fails to remove known defamatory material posted on land or chattel under their control.

A person who republishes a statement is liable to the same degree as the original publisher. However, secondary publishers (distributors and vendors) are not liable if it did not have reason to suspect the defamatory statement. Newspapers and book publishers do not qualify as secondary publishers and will be held strictly liable, even though they do not know of the defamatory nature of the material. However, republication of defamatory material will not be subject to liability if (1) the source was reputable; (2) defendant did not know of the falsity; (3) the story itself does not reveal its falsity; and (4) no substantial change was made to the story. Radio and television broadcasters are treated as primary publishers regardless of the origin of the statement.

Constitutional Standards

Under the Constitution, speech and writing against certain officials, figures, and concerns is privileged. The public policy for this is that the 1st Amend should protect the free exchange of ideas, and should allow some potentially false speech to protect the breathing room of public discourse. In defamation, these constitutional limits are analyzed under 3 categories, being statements involving: (1) public officials and public concern, (2) public figures and public concern, and (3) private figures and public concern.

Public Official/Public Concern and Public Figure/Public Concern

Both public officials and public figures who bring an action for defamation must prove actual malice with respect to the content of the statement. In addition, because the speech involves a public official or public figure, the plaintiff bears the burden of proving falsity, and the defendant may establish substantial truth as a complete defense.

Private Figure/Public Concern

A private figure and a matter of public concern is where the P is neither a public official or public figure, but the subject matter of the statement is of public concern. The P has the burden to prove by a preponderance of the evidence all common law elements and (1) negligence, intent, or malice, (2) the statement was false, and (3) actual damages. If the P can prove actual malice, damages are presumed and punitive damages may apply. If the P cannot prove special damage, the cause of action fails.

Private Figure/Private Concern

A private figure and a matter of private concern is not governed by the constitution. Common law standards apply and to recover, P must prove actual damages by a preponderance of the evidence. Unlike matters of public concern, neither falsity nor actual malice is required, and general damages may be recovered without proving special damages. P may also recover both common law presumed damages and punitive damages without the restrictions of the 1st amendment. 

Public Officials

A public official is a person within the government who has substantial responsibility over government affairs. A public figure is a person who is not a public official and either a limited or universal public figure.

Public Figures

A public figure is a person who is not a public official and either a limited or universal public figure.

1. A person is a limited public figure if they (1) voluntarily inject themselves or are drawn into a specific public controversy, or (2) pursue a course of conduct from which it is reasonably foreseeable, at the time of the conduct, that public interest would arise.

2. A universal public figure is someone with such pervasive fame or notoriety that he becomes a public figure for all purposes and contexts.

Public Concern

Public concern regards statements which impact or affect the general community. Content, form, and context are used to determine whether statements are of public or private concern. 

Private Figure

A private figure and a matter of public concern is where the P is neither a public official or public figure, but the subject matter of the statement is of public concern.

Private Concern

When the statement is made solely in the individual interest of the speaker and its specific audience. Content, form, and context are used to determine whether speech is of public or private concern.

Actual Malice

Actual malice must be established by clear and convincing evidence showing that the defendant had knowledge of the falsity of the statement or recklessly disregarded whether the statement was false.

Recklessness may be shown by (1) the defendant entertaining serious doubts about the truth of the statement and deciding to publish anyway, or (2) the defendant purposefully avoiding the truth despite obvious reasons to question accuracy. Once actual malice is proven, the plaintiff may recover general damages, presumed damages, and punitive damages without any requirement that special damages be proven first.

Substantial Truth

A statement is substantially true when minor inaccuracies do not materially change the substance of the statement.

Actual Damages

Actual damages include any provable harm flowing from the defamation, such as pecuniary loss, damage to reputation, humiliation, or emotional distress.

Special Damages

Special damages are limited to provable, pecuniary loss, such as loss of employment, loss of customers, or other measurable economic harm.

Privileges/Defenses

Aside from the Constitutional privileges, defamatory speech may be privileged under other defenses, such as, opinion, fair comment, consent, qualified privilege, absolute privilege, and truth.

• An opinion is a statement that is not provably false and is constitutionally protected. Opinion statements not involving public issues may be left without constitutional protection. Opinions are protected when issues of public concern are involved. Name calling, satires, and parodies can carry meanings that are not literal. Because of this, they lack factual content and are therefore not actionable. Opinions will be actionable if they contain or imply ascertainable, objective facts that are false and defamatory.

• Fair comment is a privilege to criticize public officials and their conduct. Fair comment affords immunity for honest expressions of opinion on matters of (1) legitimate public concern (2) which represent the actual opinion of the speaker and (3) are not made for the sole purpose of harming the P.

• Consent of P is a complete defense if the P consents to the publication of the defamatory matter. P may limit consent to a particular time and for a particular purpose.

• Qualified privilege exists where a statement is (1) made in good faith (2) on any subject matter in which the publisher and/or third person have a special interest in the making of the statement. This privilege can be lost if D abuses the privilege by acting with actual malice.

• Absolute privilege exists where the subject matter of the defamatory statement is of paramount social importance. Provides immunity (1) during judicial proceedings, (4) during legislative proceedings and broadcasters of the judicial proceedings, (3) for public officials and officers acting within the discharge of their duty, (4) publications between spouses.

• Truth is an affirmative defense which D may raise and has the burden to prove. Truth will serve as a complete privilege even if the defamatory statement contains some falsity but is substantially true.