Defamation Law In General
What is defamation? Defamation is a tort involving spoken or written language that causes injury to your reputation. If your reputation was harmed by a person’s allegations, you may sue for damages for loss of reputation, emotional distress, and for economic losses.
The common law defines a prima facie case of defamation as having the following elements:
- A defamatory statement
- Of or concerning the victim
- Published to a third party who understands its defamatory nature
- Resulting in damage to the victim’s reputation
What is a “defamatory statement?” A defamatory statement can be blurted out, shouted, or whispered by someone, or it can exist in a permanent format, like in a will, a letter, a broadcast, or digitized media. A statement, not defamatory on its face, can still create liability if it can be proved to be defamatory by innuendo. Thus, a statement is defamatory if the person who hears it, reads it, or views it on television or in the theater, reasonably understands it to express or imply factual allegations about the victim which, if believed, would tend to lessen the victim’s reputation in the community. It must also be noted that case law holds that a defamatory statement is one that has a quality of falsity to it. If a statement is substantially true, it will not likely be considered to be defamatory.
What types of statements are likely not to be viewed as defamatory, i.e., that would not lessen the victim’s reputation in the community?
- Hyperbole, meaning exaggerated, extravagant speech not meant to be taken literally. Example: “My wife could eat a horse.”
- Profanity in general.
- Jokes intended as satire. Example: humor directed at a politician. However, you must consider the entire surrounding circumstances.
- Opinion. Because people are entitled to their opinions, if proved, this is a valid defense to a claim of defamation. o Fictional works, if understood to be fiction.
- True statements. A true statement is a statement about which the victim cannot bring a lawsuit, because truth is always a defense to a claim of defamation. But, you must consider the context in which the statement is published, because if it is published in such a manner as to cause the victim to become severely emotionally distressed, or invades the victim’s privacy, the victim may get damages.
Who is a “victim” of defamation? It can be either an individual or a group of people. A statement that injures the standing or reputation of a group of persons can be actionable, but usually, the group must be limited and fairly well-defined. Also, a victim can prove defamation by colloquium if he can show that reasonable persons would infer the defamatory statement to be about the victim, even if his/her name is not used.
What is “publication?” Publication means that the defendant or perpetrator communicated the defamatory statement to a third party, even if he believed the statement were true. But, if the defendant makes the statement to the victim, it is not defamation! Also, if the defamatory statement was published, and subsequently, the statement was repeated anew by the same or a different publisher, the “republisher”of the defamation will face liability as well as the original publisher.
Who is the “community?” The community consists of law-abiding, respectable, and even important members within the victim’s locality. There must be a community that would interpret the defamatory statement as detrimental to the victim’s reputation, because if no harm occurred to the victim’s reputation, all the elements for defamation would not be met, and the victim might lose his lawsuit.
Slander and Slander per se.
A spoken defamatory statement is called ordinary slander. For ordinary slander, you can only recover damages if you plead and prove pecuniary injury. This means you must show out-of-pocket, economic losses, such as a loss of income, loss of employment, loss of clients, or the loss of business opportunities, due to the spoken words of another.
Slander per se, however, is spoken defamatory language concerning certain well-established subject areas that is reasonably understood to express or imply that the victim has:
- Committed a major crime
- Suffers from a loathsome disease
- Is incompetent and/or unqualified for his/her occupation, or
- Engaged in serious sexual misconduct, or if female, unchasity such as she has engaged in prostitution or adultery.
A “major crime” is a felony, like robbery or burglary, or a crime of moral turpitude, like child molestation. Like child molestation, a major crime is something that shocks the conscience as being inherently base, vile, or depraved. A “loathsome disease” was formerly considered to include syphilis and leprosy, but today includes a wide range of communicable diseases and conditions, like: tuberculosis, hepatitis, AIDS, syphilis, herpes, and scabies. An allegation that the victim is “incompetent and/or unqualified for his/her occupation” may, for example, allege that the victim is an untrustworthy member of his/her chosen profession, such as an allegation that a contractor is not licensed in the state in which he works. Lastly, an allegation that the victim “engaged in sexual misconduct, is a prostitute, or an adulterer” is a broadening of the category that historically only referred to the “chastity of a woman.”
Because a victim’s reputation can be immediately and irreparably devastated if slander per se is involved, the courts presume that the victim was injured. This means that the victim does not have to prove up his damages to recover in tort for defamation.
Libel – defamation in permanent (written) formats.
Any defamatory statement that is recorded in some type of permanent form is called libel. This can include books, flyers, newspapers, cellular telephone messages, video, and television and radio broadcasts. Like slander per se, damages are presumed where libel is involved.
Constitutional issues asscociated with defamation adds additional elements for the prima facie case.
The U.S. Supreme Court has determined, in several decisions, that where the defamation involves a matter of public concern, the First Amendment requires a victim to prove additional elements for a prima facie case. Moreover, in NY Times v. Sullivan- With public official higher threshold (have to prove actual malice) knowing it to be false or with reckless disregard. The victim or plaintiff must also prove falsity and fault on the part of the defendant. However, this requirement is restricted to victims who are public officials or public figures, defendants who are members of the media. A public figure is someone who has achieved pervasive fame or notoriety regarding a matter of public concern, or someone who injects himself into the center of controversy.
To prove falsity, the plaintiff need only prove that the defamatory statement is largely untrue. To prove fault, the plaintiff must prove actual malice on the defendant’s part. In the case of New York Times v. Sullivan, the U.S. Supreme Court defined the test for “actual malice” to be a defendant whose publishes a defamatory statement that is “knowingly false or with reckless disregard for the truth.” If the plaintiff is not a public figure or public official, he need only prove that the defamatory statement was negligently published, if it is a matter of public concern. Gertz v. Welch.
General Rule: If Plaintiff is a public official or public figure & the defamatory statement is Germaine thereto, Defendant is, as a matter of constitutional law, privileged unless Plaintiff proves: 1. The statement was made with actual malice 2. Falsity (St Amat v. Thompson) Failure to investigate is negligence but not recklessness Public official-Definition Are those among the hierarchy We have special interest in police officers to encourage free speech We have special interest in school teachers to encourage free speech (Milkovich-Applied 2nd definition) focuses on social importance of particular government employee, focues on rank, supervisory authority.
There are 3 main classifications to be concerned with regarding constitutional privleges:
1. public officials & public figures
2. private person & public concern
3. private person & private concern
A defendant in a defamation action has available several defenses. Consent is a defense to defamation, but the victim could show that consent was exceeded. Truth is a complete defense, but only in purely private matters. Also, opinion and fair comment are qualified defenses. Other qualified defenses, which can be lost if abused or the conduct was malicious, include: 1) reports of public proceedings, 2) matters in the public interest, 3) interest of the publisher, and 4) interest of the recipient. This last mentioned is important, because it could concern, for example, a statement from a former employer to a potential employer about a employment opportunity, or a statement from a credit bureau to a business customer.
Furthermore, several absolute defenses exist, which involve the three branches of government: a defendant will not be liable for defamation in a judicial or executive proceeding, so long as the defamatory statement is reasonably related to the proceeding. In a legislative proceeding, under the Speech and Debate Clause of the Constitution, a defendant will not be liable for defamation under any circumstances, so this is truly the only absolute defense.
If you need the services of a competent defamation attorney in Southern California including Los Angeles and Orange County, please feel free to contact an attorney in our office? The lawyer in our Orange County office has experience with civil tort actions and can assist you with your cause of action. If you have been injured or civilly wronged by someone and have sustained damages as a result you should consult an attorney in order to make sure that your legal rights are protected. The lawyer in our office would be happy to assist you with your civil legal problem. Please feel free to contact a personal injury lawyer in our Orange County office for a consultation regarding your legal issue.
