Clem on Torts: Chapter 11: Defamation

Copyright 2014, Richard P. Clem
Richard P. Clem Continuing Legal Eduction

Clem on Torts is a comprehensive review of the material covered in a first-year torts class in an American law school. It is available free of charge on this website, and is also available for purchase as an Amazon Kindle book.

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The law of defamation has undergone a great change in the half century since New York Times Co. v. Sullivan, 376 U.S. 154 (1964), which held that state defamation law is subject to the First Amendment of the U.S. Constitution. In a large number of cases, these constitutional concerns greatly affect the outcome of the case. For the purpose of this summary, we will largely ignore those constitutional concerns, and instead concentrate on the common-law rules. But it should be kept in mind that many of the common law rules, if applied in certain factual scenarios, are superseded by the constitution.

The constitution generally requires that if the plaintiff is a “public figure” or a “public official”, then the plaintiff must prove that the defendant acted with “malice” in making a defamatory statement. In this context, “malice” means either that the defendant knew the statement was false, or acted with reckless disregard for the truth. If the plaintiff is a private individual, then the test is more relaxed. In that case, the plaintiff must prove either malice, or that the defendant was negligent in ascertaining truth or falsity.

The common-law elements of the tort of defamation are:

  1. Defamatory statement concerning the plaintiff
  2. Falsity
  3. Publication
  4. Damages

If the defamation is made in writing, then it is called libel. If the defamation is spoken, then it is called slander. The elements of the torts are the same, but somewhat different damage rules apply.

The first element is that there be a defamatory statement, and that it be about the plaintiff. A statement is defamatory is it would tend to injure the plaintiff’s reputation before any substantial group of people. A statement can be defamatory on its face, or it can be defamatory by innuendo.

Whether or not the statement is “about the plaintiff” is tested with an objective standard: This requirement is met if a reasonable person would know about whom the statement applies.

The second element is that the statement is false. It should be noted that a statement of opinion is neither true nor false. However, if the defendant states an opinion, it might imply an underlying statement of fact. And if that underlying statement of fact is false, then this element is met.

In some very old cases, the plaintiff was not required to prove falsity. Instead, truth was an affirmative defense, and the defendant was required to prove the truth of the statement. But the universally recognized rule today is that falsity is an element of the tort, and the plaintiff must prove falsity.

The third element is that there must be a “publication” of the statement. This means that the statement was communicated to at least one third person who understood the statement.

Most jurisdictions follow the “single publication rule”. Under this rule, all copies of the same edition constitute one publication.

If it is foreseeable that the defamatory statement will be repeated by another person, then that repetition constitutes a new publication.

One of the elements of defamation is damages. In the case of slander, the amount of damages must be proven. In the absence of damages, there is no cause of action. However, damages need not be proven in a case of “slander per se”. In the following cases, damages are presumed:

  1. The statement accuses the plaintiff of a felony or crime of moral turpitude
  2. The statement accuses the female plaintiff of unchastity
  3. The statement implies that the plaintiff has a loathsome disease.
  4. The statement imputes a quality inconsistent with plaintiff’s profession.

In all other slander cases, damages must be proven.

In the case of libel (subject to constitutional limitations), damages can be presumed. There is an exception, however, in the case of libel by innuendo. In that case, the plaintiff must prove damages.

There are a number of defenses to defamation.

First, judges and legislators are immune to defamation in the course of their official duties.

Also, one might have a qualified privilege to defame another person in the protection of his or her own legitimate interests. In order to establish this privilege, the defendant must show:

  1. The statement was published in a reasonable manner.
  2. The defendant published it to someone in a position to protect the defendant’s interests
  3. The statement is connected to that interest
  4. Defendant believed the statement to true.
  5. The defendant had no desire to harm plaintiff.

The tort of false-light privacy is similar to defamation. Only the first element differs. Instead of a defamatory statement, the first element is replaced by a statement that casts plaintiff in a false light in the public eye.

The tort of disparagement is also similar to defamation, but instead of attacking the plaintiff’s character, the statement attacks the quality of plaintiff’s goods or other business interests.

Clem on Torts is also available at Amazon as a Kindle book.

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