Define Defamation

Defamation

Defamation is a dignitary tort, meaning that the wrong inflicted offends the dignity and reputation of the person rather than their physical well-being. Defamation includes both libel and slander. Libel is defamation done in a more permanent medium, such as in a writing. Slander is defamation done in a less permanent medium, such as by spoken word.

To prove a claim for defamation, a plaintiff must show that: (1) the defendant made a false statement of fact about the plaintiff which subjects the plaintiff to scorn and contempt, (2) which was published to a third party, (3) at least negligently, (4) which was the factual and legal cause of (5) the plaintiff’s damages.

False Statement of Fact

The first element that the plaintiff must prove is that the defendant made a false statement of fact. This statement must expose the plaintiff to some level of scorn and contempt, and the statement must be about the plaintiff.

To be defamatory, the statement must tend to lower the plaintiff’s reputation in their community or deter people from association with the plaintiff. Rest. 2d § 559. Some states have adopted a more narrow definition. The language used by some states might say that the plaintiff must be exposed to “hatred, contempt, or ridicule” before a statement can be actual. Thus, calling someone insane might not be considered defamatory under the more narrow view. Grand v. Reader’s Digest Association, 151 F.2d 733 (2d Cir. 1945).

As stated above, the statement must be about the plaintiff. A plaintiff bringing a defamation case must show that the allegedly defamatory statement identifies them in some way. This can be explicitly done by naming the plaintiff, or it can be done by making a statement that references the plaintiff in a way that identifies them (for example, a statement referring to “the former football player who got away with murdering two people back in the 90s” would reasonably be understood to identify OJ Simpson).

While members of a group can claim to be identified in a defamatory statement, the group has to be sufficiently small. If the group is large, an action won’t lie since the statement is not about a particularly known plaintiff. Nieman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952).

The statement must be a false statement of fact. Thus, a true statement cannot be defamatory. Whether a statement purports to be a false statement of fact often requires examining the statement itself and the context with which it was made. Some examples:



• A mock advertisement stating that a prominent religious leader lost his virginity to his mother in an outhouse could not reasonably be considered a statement of fact. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).
• Calling a version of an opera a “Fake Phantom [of the Opera] … thriving off the confusion created by the two productions … a rip-off, a fraud, a scandal, a snake-oil job” is nonactionable opinion. Phantom Touring, Inc. v. Affiliated Publications, 953 F.2d 724 (1st Cir. 1992).
• Calling someone a racist is not actionable. Stevens v. Tillman, 855 F.2d 394 (7th Circuit. 1988), cert. denied, 489 U.S. 1065 (1989).
• Saying that someone acquitted of a criminal homicide charge is a murderer who likely puts a notch in his gun for each of his victims is not actionable. Gisel v. Clear Channel Communications, Inc. (N.Y. App. Div. 2012).

Publication to a Third Party

The defendant must have published the statement to a third party. "Publishing" a statement may mean writing it down and distributing it, but for defamation, publication occurs any time the defamatory statement is shared with and understood by another third person. If someone makes a statement just to you that would otherwise be defamatory, that is not enough.

Not only does there need to be publication to a third party, but the third party needs to understand what is being communicated. Thus, if the statement is made by someone in another language to the plaintiff in the presence of other people who do not speak that language, there is not sufficient publication. Economopoulos v. A.G. Pollard Co., 218 Mass. 294 (1914).

Negligence or Actual Malice

A defamation plaintiff must show that the statement was published with at least a level of negligence. Thus, strict liability will not apply. This often comes up in cases where a third party overhears a conversation between the plaintiff and defendant. A defendant may not be negligent if they had no reason to believe anyone else could hear the remark, but a defendant may be at least negligent if they send a letter to a blind person with the statements written in it, knowing that the recipient would need to have the letter read to them by someone else.

A higher standard applies for public figures. In New York Times Co. v. Sullivan the United States Supreme Court held that a public official can only maintain a defamation action if they can prove that the defendant made the statement with “actual malice.” 376 U.S. 254 (1964). The Court has subsequently extended this requirement to public figures, regardless of whether they work in government.

Actual malice does not require that a defendant act with ill-will or with a design to harm the reputation of the plaintiff. Instead, the term actual malice means that the defendant made the statement either knowing that the statement was false at the time or with such reckless disregard as to the possibility that the statement was false that they should have known it was untrue.

Factual and Legal Cause

Proving causation of a plaintiff’s harm works much like it does for other wrongs. The defendant’s actions must be both the factual and legal causation of the plaintiff’s damages.

Factual causation is simply saying that there was some basic cause and effect at work. States typically require either but-for causation or that the defendant’s actions be a substantial factor in causing the damage. But-for causation requires that the plaintiff prove that their damages would not have occurred but for the defendant’s defamation. Legal causation requires that the plaintiff demonstrate that their damages were legally foreseeable as a consequence of the defendant’s actions. Let us look at an example where factual causation can exist but legal causation may not exist:

D defames P. P decides to consult with a Sacramento defamation attorney since D’s defamation cost P their job. Upon arriving at the attorney’s office, P exits the vehicle and is struck by lightning. P is subsequently hospitalized. Had D not defamed P, P would not have lost their job. But also, had D not defamed P, P would not have been at the law office during a thunderstorm and would not have been struck by lightning. The law acknowledges that getting fired from your job is a reasonably foreseeable consequence of defamation, but the defamatory defendant would have no way to predict that their defamation would lead to someone getting struck by lightning. That just is not foreseeable. Therefore, in our example, P would recover for the loss of their job but not for their medical bills.

Damages

A plaintiff must prove damages. With certain types of defamation cases, damages can be presumed to exist, but prior to being awarded, they must be proven to exist.

These can include damages for the loss of any income or sales, emotional damages for being subjected to the contempt that came from the statement, and things of a similar nature.