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DEFAMATION BASICS

DEFAMATION DEFINED

Everyone has a right to not have their reputation damaged by false statements. Defamation is the unprivileged publication of a false statement of fact that injures another’s reputation. There must be a balance of interests between protecting an individual’s personal reputation and the freedom of speech.

The elements for a Defamation cause of action include:

(1) False statement about the plaintiff;
(2) Publication of the statement to a third person who understands the meaning of the statement;
(3) Fault on the part of the defendant (which may be intentional, reckless, or negligent) in regard to falsity; and
(4) Actual or presumed damages suffered by the plaintiff.

Defamation consists of libel and slander:

(1) Libel consists of written or printed words, embodiment of words in a physical form or any other form of communication that has similar characteristics as written or printed words, such as pictures or signs.

(2) Slander consists of oral spoken words or gestures, such as conduct.

There is no bright-line rule as to what words are considered defamatory. Some statements may be injurious to some people’s reputations, whereas the same statement may not be injurious to others. Whether a statement qualifies as defamation is determined on a case-by-case evaluation, and must be evaluated based on what the average reasonable person or the general public would understand the statement to mean.

THE PUBLICATION MUST BE READ AS A WHOLE

In determining whether the specific statement is defamatory, the words must not be read in isolation, rather the publication must be read in its entirety. This means that the entire article, statement, broadcast, or piece of literature must be read. Any alleged defamatory interpretation of a particular statement can be absolutely negated by the statements immediately preceding or following the particular statement. This includes any explanation that the statement is merely an opinion and not an assertion of fact. Simply, a particular work must be read in its entirety and not be divided into separate units. This principle is also applied to headlines, chapter titles, illustrations, and captions.

THE PARTY MUST BE IDENTIFIABLE

It is necessary for the party alleging defamation to prove that he or she is the person about whom the statement was made. It is not necessary that every single person who receives the material understands the statement to be made about the plaintiff. Rather, all that is required is that some of the readers or listeners understand the statement to be about the plaintiff.

Moreover, the statement does not need to identify the plaintiff by name. The intention of the author and the recognition of the plaintiff that the statement is about him or her is not relevant. The test is whether a third person recipient would reasonably understand that the statement was written or uttered in reference to the plaintiff. This is a question of fact that is decided by the jury.

Many times words are used broadly to describe a group or class. The statement is defamatory only if the statement can be reasonably understood to be about a particular member of the group or to every member of the particular group. The larger the group or class, the more difficult to prove the likelihood of the statement being about a single member or every member of the particular group.

FICTIONAL CHARACTERS

An author may use fictional characters in their works that may be widely distributed. The author is under no duty to address the possibility that someone may identify with the fictional characters. However, a disclaimer in a fictional work is a relevant factor in determining the defamatory nature of the work. However, the disclaimer is not a dispositive factor, and the work may still be considered defamatory if other factors are present. Nonetheless, an example of a disclaimer should state that any resemblance of the fictional characters to actual persons is purely accidental.

When a person attempts to show the similarities and resemblance of the supposedly fictional character, the test is whether the third party recipient could reasonably believe that the character is a portrayal of the plaintiff. The jury will be required to make a comparison between the plaintiff’s characteristics and that of the fictionalized character.

HARM TO BUSINESS

A false assertion of fact concerning a business can only be considered to be defamatory if the statement is about business credit, efficiency, financial soundness, property, reputation, or ethics. In doing so, the statement may prejudice the business in its affairs by deterring third persons from working or dealing with the business. As an aside note, if the statement is a false assertion of fact concerning a product, the proper cause of action is not for defamation but rather a different cause of action for injurious falsehood. Moreover, words spoken or written about a particular employee, officer, or owner of a business is not defamatory against the business itself unless the statement directly relates to the business trade or affairs. Instead, if the statement relates only to the individual’s personal capacity, only that particular individual has standing to allege defamation.

FALSE STATEMENT OF FACT

In order for a statement to be considered defamation, it must be a false statement of fact about the plaintiff. There must be a distinction from statements of opinion. Statements that do not consist of facts, but rather are merely the views of the defendant, do not qualify as defamation. Defamation must be a false assertion of fact. The First Amendment to the Constitution protects freedom of expression. Statements of opinion are privileged speech and are not actionable as defamation.

FACT VS. OPINION

Whether an alleged defamatory statement is an opinion or an assertion of fact is a question of law to be decided by the Court. If the statement has any tendency to be interpreted as an opinion, the jury will decide whether that meaning was actually attributed to it by the recipient so that the statement was in fact considered to be an opinion.

To discern whether a statement is one of fact or opinion, the Courts have established various tests.

The “Contextual Test,” also referred to as “Totality of the Circumstances Test”, considers the following factors in determining whether an alleged statement is constitutionally privileged:

(1) The content and form of the communication taken in its totality;
(2) The circumstances surrounding the communication;
(3) The ordinary meaning of the words that make up the communication;
(4) The likely and reasonably understandable interpretation of the words; and
(5) The extent to which the words can be proved false or true by objective evidence.

Furthermore, the Court must be able to determine if the statement is one of verifiable fact or whether the reasonable person would believe the statement to be an assertion of fact. This requires two inquiries by the Court:

(1) Whether the statement is “sufficiently factual to be susceptible of being proved true or false; and
(2) Whether the reasonable person would believe that the assertion is one of fact.

Whether a reasonable person would believe the statement to be a fact is based on factors, including:

(1) How the statement is phrased;
(2) The context of the whole statement; and
(3) The circumstances surrounding the statement, including the medium of dissemination and the intended audience.

The focus of the analysis is on objectivity and verifiability of the assertion. Therefore, many terms, epithets, or name-calling are considered hyperbole and embellishments which are incapable of defaming because they are not falsifiable assertions of discreditable fact. The defamatory capability of such terms cannot be determined without considering the context in which the statement is made. Moreover, the First Amendment freedom of expression protects opinions that may even be unpopular.

REQUIREMENT OF FAULT

The degree of fault on the part of the party making the false statement depends on certain facts, such as whether the person about whom the statement was made is a public figure or a private person. Public figures can be either: (1) public officials, (2) a person who has received pervasive fame and notoriety, or (3) a private person who voluntarily injects themselves into the public spotlight or is involved in a public controversy.

STATUS OF THE PLAINTIFF

Whether a plaintiff alleging defamation is a private individual or a public figure is a question of law for which the Court will decide.

Public Officials

Public officials include those who have, or reasonably appear to have by virtue of their position, substantial responsibility for or control over the conduct of government affairs.

Pervasive Fame and Notoriety

A person who has achieved pervasive fame or notoriety is a public figure. Such a person voluntarily seeks to influence the public.

Limited-Purpose Public Figure

A person who voluntarily injects themselves is considered public figure with regard to the particular event. Furthermore, a person may be drawn into a particular public controversy. This type of person is considered to be a public figure by virtue of the person’s attempts to be thrust in front of the public. In this type of situation, the alleged defamation must be relevant to the voluntary participation in the particular public controversy.

DEGREE OF FAULT REQUIRED FOR DEFAMATION ACTIONS

The different degree of fault required on the part of the person making the false statement is according to the controlling State laws.

For instance, in California:

(1) Private Individual

A private individual alleging defamation must prove that the defendant was at least negligent with respect to the truth or falsity of the statement.

(2) Public Figure

In order for public officials, public figures, and limited-purpose public figures to recover for injury to reputation, they must prove that the defendant acted with actual malice, which is a standard that places an extremely high burden of proof on the plaintiff to establish by clear and convincing evidence that the defendant had knowledge that the statement was false or that the defendant acted with reckless disregard for whether the statement was false or not. The public figure plaintiff must at least show that the defendant has a very high degree of awareness that the statement was false or that the defendant entertained serious doubts as to the veracity of the statement.

(3) No Liability Without Fault

Above all, regardless of the controlling State law, according to the United States Constitution there cannot be liability without some degree of fault.

As a result, the mere distributor, disseminator, or transmitter of the alleged defamatory statement may not be liable if the dissemination was done within the regular course of business without the requisite intent or negligence. This includes entities such as newspaper and periodical distributors or telegraph and telephone companies. However, broadcasters and publishers are subject to the same liability as an original publisher. This includes radio and television broadcasting companies.

Furthermore, the defendant can attempt to show that he or she lacked the requisite intent as a defense to the allegation of defamation. The defendant will have to prove that he or she was not culpable by producing evidence that demonstrates the defendant’s good faith, due care, or the observance of customary standards.

AVAILABLE DAMAGES IN DEFAMATION ACTIONS

Presumed Damages for Defamation Per Se

Defamation per se includes a statement that concerns a matter of purely private concern and by its very nature is defamatory. There is no need for extrinsic evidence to explain the statement’s defamatory nature. It is defamatory on its face. If the alleged defamatory statement is not apparent on its face, the statement is considered defamation per quod (i.e. situations in which the statement is not obviously defamatory).

Pursuant to State law, in general there are four categories of defamation per se that cause serious injury to a person’s reputation to the extent that it is conclusively defamatory:

(1) Commission of a crime;
(2) Incompetence in business, trade, profession, or office;
(3) Serious sexual misconduct, such as unchastity of a woman; and
(4) Loathsome disease, such that the individual is excluded from society.

If the statement qualifies as defamation per se, general damages are presumed as a matter of law because injury to the plaintiff’s reputation is conclusive and he or she need not introduce any evidence of actual damages in order to obtain or sustain an award. For defamation per se, a plaintiff need not show special damages, which include the recoverable damages to the plaintiff’s property, business, trade, profession or occupation, including expenditures that resulted from the defamation. However, there is no fixed standard in how courts calculate presumed damages. Furthermore, the amount of presumed damages can be nominal, as low as only one dollar. Presumed damages allows the jury to assume the damage to the plaintiff’s reputation and feelings, allowing the jury to provide an appropriate compensatory amount based on general considerations such as the seriousness of the accusation, credibility of the publication, circumstances and standing of the plaintiff in society, and any other factors. In addition, a plaintiff entitled to presumed damages may also recover special damages.

On the other hand, it is indispensable in defamation per quod actions that the plaintiff provide evidence as to why the statement is defamatory and to provide proof of actual damages.

Special Damages

Special damages are damages that the plaintiff has suffered in regard to loss in property, business, trade, profession, or occupation, loss of income, loss of profits, loss of credit, loss of employability, and also including the amount of money the plaintiff has expended as a result of the alleged libel. When the alleged defamatory statement does not qualify as defamation per se, an allegation of special damages is an essential element of the cause of action. Special damages are limited to only specific computable pecuniary economic harm directly, naturally, and proximately caused by the loss of reputation arising from the defamatory statement. Special damages must specifically show how others have treated the defamed person differently as a result of the published falsehood based on a monetary calculation. Therefore, the plaintiff is required to provide the specific identity of the customers who withdrew business patronage from the plaintiff. Simply put, special damages must be alleged with particularity.

Punitive Damages

Punitive damages, also known as exemplary damages, are awarded in order to punish the defendant and to deter similar conduct by others. In order to recover, the plaintiff must show actual malice and the defendant’s wantonness in making the statement.

THE ABSOLUTE DEFENSE OF TRUTH

Truth is an absolute defense to an allegation of defamation. Regardless of whether the statement was published with the intention of bad faith, malice, or ill will, if the material at issue is true then it is not defamatory.

STATUTE OF LIMITATIONS

The statute of limitations defense for a defamation action is controlled by State law. For instance, pursuant to California Code of Civil Procedure section 340(c), California’s statute of limitations for defamation is one year. Moreover, California applies the single publication rule, which states that the statute of limitations begins to run from the time that the statement is first published.

RELATED CAUSES OF ACTION

The facts underlying the allegation of defamation may also give rise to other available causes of action. These often include:

(1) Intentional or Negligent Infliction of Emotional Distress, which includes extreme and outrageous conduct;
(2) Injurious Falsehood, which includes the disparagement of property (known as slander of title) and disparagement of the quality goods or services provided by a business (known as trade libel); and
(3) False Light Invasion of Privacy.

False light stems from an individual’s right to privacy. False light is subjective and based on injury to a person’s personal feelings. The defendant must have had knowledge of the falsity of, or acted reckless in regards to ascertaining the truth of, the communication which placed the plaintiff in a highly offensive light within the public eye based as viewed by a reasonable person.

Moreover, there is no cause of action for defamation of a deceased individual. However, if the individual commenced a lawsuit and then died, the lawsuit can be pursued by the personal representative of the estate or by the decedent’s successor in interest such as the surviving spouse. This is based on the State’s particular controlling survival statute.