Defamation Information

I hereby post, as a public service, the following facts regarding defamation (please note that "slander" and "libel" are both included in the wider term "defamation"). Feel free to disseminate this information at will; I ask only that you cite the sources that I have provided.

a. ;)

Defamation is a public communication that tends to injure the reputation of another. It includes both libel (written defamatory statements) and slander (oral ones). The definition of defamation varies from jurisdiction to jurisdiction, but “there is common agreement that a communication that is merely unflattering, annoying, irksome, or embarrassing, or that hurts only the plaintiff’s feelings, is not actionable.” Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems 2–9 (1999). People should be tough enough not to be injured by such statements, which would flood the courts if actionable. Id. at 2–10.

The U.S. Restatement (Second) of Torts defines defamation as a communication that “‘tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’” Id. at 2–11 (quoting Restatement (Second) of Torts § 559 (1977)). England, birthplace of the common law, has a similar definition. One court framed the question as whether "‘what has been published . . . would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred, or ridicule or to injure his character.’” Derbyshire County Council v. Times Newspapers Ltd, 1 All E.R. 1011, 1015 (H.L. 1993) (U.K.) (quoting South Hetton Coal Co Ltd v. North-Eastern News Association Ltd, 1 Q.B. 133, 138 (Q.B. 1894) (U.K.)).

Other common tests include:

“‘lowering the plaintiff in the estimation of right-thinking people generally,’ ‘injuring the plaintiff’s reputation by exposing him to hatred, contempt or ridicule,’ and tending to make the plaintiff be shunned and avoided.’” Geoffrey Robertson & Andrew G.L. Nicol, Media Law 46 (1992).

Elements shared by most jurisdictions include a statement, publication to a third party or parties, and a potential to injure the plaintiff’s reputation. . . . The questions for the court include: is the statement true, does it matter if it is true, how will readers interpret it, and what was the mens rea of the person who made it. . . . Once an action reaches trial, the common law has traditionally offered three defenses to defamation: truth, fair comment, and privilege. For a more detailed discussion of these defenses, see Robertson & Nicol, supra, at 70–95; see also Reynolds v. Times Newspapers Ltd., 3 W.L.R. 1010, 1015–17 (H.L. 1999) (U.K.).

Truth, or justification, is a complete defense for statements of fact. If defendants can prove the truth of a defamatory statement, they cannot be held liable for damages. Perfection is not required, however. In Britain, for example, the defendant only needs to show that the statement is “substantially correct.” See Robertson & Nicol, supra, at 73–76. The defense of fair comment offers protection for the expression of opinions. The court does not need to agree with the opinion; instead, it must determine “whether the views could honestly have been held by a fair-minded person on facts known at the time.” Id. at 79. . . . A true statement is never defamatory.

http://www.law.harvard.edu/students/orgs/hrj/iss13/docherty.shtml

Defamation refers to false statements of fact that harm another's reputation. It encompasses both libel and slander. Libel generally refers to written defamation, while slander refers to oral defamation. . . . The hallmark of a defamation claim is reputational harm.

Basic requirements of a defamation case:

A defamation plaintiff must usually establish the following elements to recover:

• Identification: The plaintiff must show that the publication was "of and concerning" himself or herself.

• Publication: The plaintiff must show that the defamatory statements were disseminated to a third party.

• Defamatory meaning: The plaintiff must establish that the statements in question were defamatory. For example, the language must do more than simply annoy a person or hurt a person's feelings.

• Falsity: The statements must be false; truth is a defense to a defamation claim. Generally, the plaintiff bears the burden of proof of establishing falsity.

• Statements of fact: The statements in question must be objectively verifiable as false statements of fact. In other words, the statements must be provable as false.

• Damages: The false and defamatory statements must cause actual injury or special damages.

Defenses and privileges

There are numerous defenses and privileges to a defamation claim. Many of these vary from state to state. Sometimes, a particular party has carte blanche to make certain statements even if they are false. This is called an absolute privilege. Other privileges can be established as long as certain conditions are met.

Some of the more common defenses and privileges include:

• Truth or substantial truth: Truth is generally a complete defense. Many jurisdictions have adopted the substantial-truth doctrine, which protects a defamation defendant as long as the "gist" of the story is true.

• Statements in judicial, legislative, and administrative proceedings: Defamatory statements made in these settings by participants are considered absolutely privileged. For example, a lawyer in a divorce case could not be sued for libel for comments he or she made during a court proceeding.

• Fair report or fair comment: This privilege varies from jurisdiction to jurisdiction. Generally, it provides a measure of protection to a defendant who reports on the deliberations of a public body, such as a city council meeting.

• Libel-proof plaintiffs: This defense holds that some plaintiffs have such lousy reputations that essentially they are libel-proof. The theory is that one cannot harm someone's reputation when that person already has a damaged reputation.

• Rhetorical hyperbole: Some courts will hold that certain language in certain contexts (editorial/opinion column) is understood by the readers to be figurative language not to be interpreted literally.

• Retraction statutes: Nearly every state possesses a statute that allows a defamation defendant to retract, or take back, a libelous publication. Some of these statutes bar recovery, while others prevent the defendant from recovering so-called punitive damages.

http://www.freedomforum.org/packages/first/defamationandfirstamendment/index.htm

Please note that since "slander" is an oral communication, it is impossible to "slander" someone by writing something (or typing something) about them on the internet. That would be "libel", a defamatory written statement - assuming the other requirements of defamation are met. If the written statement is true, the statement is not defamatory at all, as truth is a complete defense to defamation, as the following cases attest.

From POSNER v. SPRINT/UNITED MANAGEMENT COMPANY, (S.D.N.Y. 3-21-2007), Slip op., at 20:

. . . "Under New York law "it is `fundamental that truth is an absolute, unqualified defense to a civil defamation action,' and `substantial truth suffices to defeat a charge of libel.'" Weber v. Multimedia Entertainment, Inc., No. 97 Civ. 0682 (JGK), 2000 WL 526726, at *10 (S.D.N.Y. May 2, 2000) (quoting Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986)).

From BRECKENRIDGE PHARMACEUTICAL v. METABOLITE LABORATORIES, (S.D.Fla. 1-24-2007), CASE NO. 04-80090-CIV-COHN. Slip op., at 6:

In Florida, "a communication is `defamatory' if it tends to harm the reputation
of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party." LRX, Inc. v. Horizon Associates Joint Venture ex rel. Horizon-ANF, Inc., 842 So.2d 881, 885 (Fla.Dist.Ct.App. 2003). However, truth is "a defense to defamation. . . . Id. at 886-887, quoting Lipsig v. Ramlawi, 760 So.2d 170, 183 (Fla.Dist.Ct.App. 2000).

From DENNISON v. MURRAY STATE UNIVERSITY, (W.D.Ky. 11-3-2006), Case No. 5:05CV-182-R. Slip op., at 21:

The elements of defamation in Kentucky are: (1) defamatory language; (2) about
the plaintiff; (3) which is published; and (4) which causes injury to reputation. Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 273 (Ky.Ct.App. 1981). In Kentucky, truth is a complete defense, thus a defendant able to prove the truth of the statement at issue cannot be held liable for defamation. Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 795-96 (Ky. 2004).

From LEONARDI v. FREEMAN, (S.D.Ohio 10-11-2006). Slip op., at 7-8:

. . .the elements of defamation, including libel and slander, in Ohio are the following: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. Akron-Canton Waste Oil, Inc. v. Safety-Kleen Oil Serv., Inc., 81 Ohio App.3d 591, 601 (1992). A defamatory statement is a false statement "causing injury to a person's reputation, or exposing him to public hatred, contempt, ridicule, shame or disgrace, or affecting him adversely in his trade or business." Matalka v. Lagemann, 21 Ohio App.3d 134, 136 (1985). In order for the statement to be considered libel per se, the words used in the publication must have the tendency to injure the plaintiff in his trade or occupation. Wilson v. Harvey, 164 Ohio App. 3d 278, 286 (Ohio Ct.App. 2005). Libel per se is defined as actionable in itself, i.e. it is libel by the very meaning of the words used. Wilson v. Harvey, 164 Ohio App. 3d 278, 285-286 (Ohio Ct.App. 2005). Actual malice and damages are presumed in an action for libel per se and thus need not be proven. Id., citing McCartney v. Oblates of St. Francis deSales (1992), 80 Ohio App. 3d 345, 354, 609 N.E.2d 216. Plaintiff asserts that the alleged defamatory statement is false. Defendant asserts that it is not false, and that Defendant repeated and reported exactly what Plaintiff said. Although truth is a complete defense to a claim of defamation, this is a question of fact for a jury to determine.

From BAUMAN v. MOUNT SINAI HOSPITAL, (S.D.N.Y. 9-29-2006). Slip op., at 25-26:

. . .Accordingly, plaintiffs' claims based on the purported falsity of these
assertions fail. See Weber v. Multimedia Entm't, Inc., No. 97 Civ. 0682 (JGK),
2000 WL 526726, *10 (S.D.N.Y. May 2, 2000) (finding truth an absolute defense to
defamation).

From MAPINFO CORPORATION v. SPATIAL RE-ENGINEERING CONSULTANTS, (N.D.N.Y. 2006). Slip op., at 33:

Under New York law . . . it is `fundamental that truth is an absolute, unqualified defense to a civil defamation action.'" Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986) (quoting Commonwealth Motor Parts Ltd. v. Bank of Nova Scotia, 355 N.Y.S.2d 138, 141 (1st Dep't 1974)). Further, "`substantial truth' suffices to defeat a charge of libel." Id. (citation omitted).