Chapter 4 - Defamation: Libel and Slander

Defamation: Definition and Categories

  • Defamation is a false communication which exposes persons to hatred, ridicule, or contempt, lowers them in the esteem of others, causes them to be shunned, or injures them in their business or calling.

  • Categories:

    • Libel: broadly, printed, written, or broadcast material.

    • Slander: broadly, spoken words of limited reach.

  • Key idea: Defamation involves a false statement that harms reputation and can be the basis for a civil suit.

The Rationale: Why Defamation Law Exists

  • Words can injure, and under civil law victims have a right to sue for damages caused.

  • Society permits some harmful communication but also protects one’s good name.

  • There is a balancing act between two important interests: protecting reputation and protecting free expression.

Libel is Expensive

  • Routine libel suits can be very costly; typical legal costs can run into the hundreds of thousands of dollars.

  • These figures do not include the actual damages awarded to plaintiffs.

  • Examples:

    • Clint Eastwood won 150{,}000 against the National Enquirer and they had to pay an additional 653{,}000 in legal fees.

  • The Internet has increased exposure to defamation and made people more vulnerable to libel claims.

Social Media Speeds Libel Suits

  • Social media accelerates publication and dispute resolution.

  • Notable examples:

    • A Texas couple was found liable for defaming a wedding photographer on their blog.

    • Courtney Love called a designer “a nasty lying hosebag thief”; a LA jury found Love not guilty, but after appeal, Love settled with the designer.

    • James Wood filed a 10{,}000{,}000 suit over a tweet calling him a cocaine addict.

  • Section 230 of the Communications Decency Act limits liability for some online actions (e.g., retweets), but it does not shield all parties in every scenario.

Finding the Online Defendant

  • Anonymous posting on social media can complicate locating the offender.

  • Case example: Model Liskula Cohen sought the identities of posters from Google on the Skanks in NYC site who called her derogatory names.

  • Anonymity plays a vital role in First Amendment law; courts require plaintiffs to show legitimate claims before anonymity is stripped away.

Five Elements of Libel

  • A successful libel suit requires all five:

    • Publication

    • Identification

    • Defamation

    • Injury

    • Fault

Publication

  • Publication means someone other than the publisher and the subject receives the communication.

  • Even harsh speech or writing can be permissible if it isn’t received by a third party.

  • Statutes of limitation (time to sue):

    • 1 year: 1 ext{ year} in 25 states and D.C.

    • 2 years: 2 ext{ years} in 19 states

    • 3 years: 3 ext{ years} in 6 states

Publication: When the Clock Starts

  • Newspapers: clock starts on the date of publication.

  • Magazines: clock starts when subscribers receive it or when delivered to wholesale distributors.

  • Internet: clock starts when the statement becomes available to the public.

  • Question: Can one venue shop to restart the clock by publishing in another venue?

Publication: Anniversary and New Editions

  • Anniversary stories can restart the statute of limitations.

  • A new edition (e.g., paperback after hardback) can restart the defamation clock.

  • Republishing a defamatory statement can create a new liability for the publisher.

Publication: Republication and Defenses

  • Republication may bring liability for someone who republishes a defamatory statement.

  • Republication does not apply to independent distribution channels (e.g., newsstands).

  • Section 230 protects Internet Service Providers (ISPs), but a content provider that makes editorial decisions can be held responsible.

Conduit or Publisher

  • Cubby v. CompuServe (1991): Court treated CompuServe as a distributor, not a publisher.

  • Stratton Oakmont v. Prodigy (1995): Court found Prodigy exercised editorial control over content.

  • Congress overruled Prodigy through the CDA and Section 230, limiting some publisher-like liability for certain intermediaries.

Jurisdiction

  • Where you file a defamation suit makes a difference.

  • Example: Barry Gordy sued The New York Daily News over an article.

  • The NY Daily News has 99% of its circulation in New York within 300 miles; only 13 copies were sold in California.

  • The Ninth Circuit held Gordy suffered damage to his reputation in California.

  • Publishing on the web widens the jurisdictional issues because online content can reach multiple states and countries.

Identification

  • After publication, a plaintiff must show they were identified in the alleged libel.

  • Forms of identification:

    • Named individuals.

    • Referred to by description (e.g., “owner of the business”).

    • Photos accompanying the caption or story.

    • Fictitious names of real people.

    • A small group where every member is identified.

Identification: Scope of Identification

  • Identification must be to the person harmed.

  • It does not extend to spouses, friends, acquaintances, or business associates unless they are the subject.

  • Dead people have no reputation to be harmed; defamation suits typically do not survive for deceased plaintiffs.

Defamation: Falsehood Requirement

  • The statement must be false; truth is a defense.

  • Because free expression protections are strong, the plaintiff bears the burden of proving falsity.

Defamation: Not Every Hurtful Word Is Libel

  • Expressions that are merely annoying, embarrassing, or hurtful do not suffice.

  • The statement must affect the plaintiff’s reputation in the community and be believable.

  • Example: Falwell v. Hustler (parody ad about Falwell) — the plaintiff lost the libel suit but won emotional distress.

Defamation: Defamation Per Se vs Per Quod

  • Defamation per se (on its face): statements presumed to harm reputation without extrinsic evidence.

    • Categories include: criminal activity; contagious or infectious disease; adultery or unchastity; harming one’s office, profession, or trade (businesses can be libeled).

  • Defamation per quod (taken in context): requires extrinsic knowledge and proof of actual damages.

  • In per quod, the court assesses how the statement damages reputation in light of surrounding circumstances.

Actual Injury

  • Plaintiff must demonstrate loss or reputational injury.

  • Types of injury:

    • Out-of-pocket money loss.

    • Impairment of reputation and standing in the community.

    • Personal humiliation.

    • Mental anguish and suffering.

Actual Injury: Bases for Damages

  • Three bases for compensating the injured party:

    • General or compensatory damages for harms that are hard to quantify (reputation, humiliation).

    • Special damages for quantifiable harm (loss of contract or job tied to the libel).

    • Actual damages include special damages, physical pain and inconvenience, proven mental suffering, and injury to reputation.

Actual Injury: Punitive and Presumed Damages

  • Punitive damages: awarded to punish the defendant for particularly malicious conduct and to deter similar conduct; public policy.

  • Presumed damages: in some cases, are compensatory damages that the plaintiff may recover without proving actual damages.

  • Social losses are not financial losses.

  • Mental distress is not a financial loss.

Fault

  • Plaintiff must show fault by the publisher.

  • Actual Malice: published with knowledge of falsity or with reckless disregard for the truth.

  • Negligence: published without the level of care that a reasonably prudent person would use.

Fault: Notable Legal Standards

  • New York Times v. Sullivan: Public officials and public figures must prove actual malice.

  • Gertz v. Welch: Private individuals must prove negligence.

  • Discovery: Herbert v. Lando (1979) addressed attempts to delve into the journalist’s state of mind and the process of deciding on a publication.

Connections and Implications

  • Defamation law interacts with First Amendment protections and the media’s role in a democratic society.

  • Anonymity on the Internet poses challenges for identifying wrongdoers while safeguarding free speech.

  • Statutes of limitations affect strategic timing for filing suit and can vary by jurisdiction.

  • Section 230 provides broader protection for online platforms, but not for all content creators or editors.

  • Per se and per quod distinctions influence what proof a plaintiff must offer and how damages are determined.

  • The balance between remedying harm and encouraging robust discourse remains a core ethical and practical concern.

Key Terms and Concepts to Remember

  • Defamation: false statement harming reputation

  • Libel vs Slander: written/broadcast vs spoken

  • Publication, Identification, Defamation, Injury, Fault: the five elements

  • Publication timing and methods (print, online, etc.)

  • Per se vs Per quod

  • Actual Malice vs Negligence

  • Damages: General, Special, Actual, Punitive, Presumed

  • Section 230: online intermediaries and liability

  • Anonymity and First Amendment protections

  • Jurisdiction considerations for online defamation

Quick Reference: Notable Cases and Statutes Mentioned

  • New York Times v. Sullivan: Public officials/figures must prove actual malice.

  • Gertz v. Welch: Private individuals must prove negligence.

  • Herbert v. Lando (1979): State of mind and editorial process considerations.

  • Cubby v. CompuServe (1991): Distributor vs. publisher distinction.

  • Stratton Oakmont v. Prodigy (1995): Editorial control over content; later affected by CDA/Section 230.

  • Falwell v. Hustler: Parody and emotional distress considerations.

  • Clint Eastwood libel case: 150{,}000 awarded; 653{,}000 in legal fees.

  • James Wood v. Twitter case: 10{,}000{,}000 suit over a tweet.

  • Real-world figures: Statutes of limitations by state (1 year in 25 states + DC; 2 years in 19 states; 3 years in 6 states).

  • Publication reach stats: 99 ext{ extperthousand} of Daily News circulation within 300 ext{ miles}; 13 copies sold in California.