IVAN HOFFMAN, B.A., J.D.
Defamation refers to the publication of false statements about a party which, if in writing is called libel and if made orally, is called slander. The laws are similar for both kinds of defamation and in this article I will refer to claims of “defamation” to refer to both except where specifically described otherwise. While these laws are generally state-specific and may vary from jurisdiction to jurisdiction, there are certain general principles that apply throughout the United States and it is to those general principles that I will address this article. I will however make reference to the California laws (Civil Code section 43 et. seq.) in this regard simply by way of example and you should of course consult with an attorney in your state about any of these issues. Further, in this article I will use the term “writer” or “publisher” to refer to the party making or publishing the statements. Keep in mind that except is some specific situations, publishers are equally liable with writers.
The gist of defamation claims is that the statements of fact made by the writer or publisher injure the reputation etc. of the party written about. California Civil Code section 45 provides in part as follows:
Let me explain section 45a. In some instances, where the libel is clear on its face, it is referred to as libel per se and in such instances, a claimant can seek both general and special damages and in some instances, exemplary damages. If, on the other hand, a libel is not “on its face” but requires “explanatory matter” to make the defamation clear, the statute requires that the claimant plead and prove “special damage.” This latter term refers to damages which are concrete and provable and are a direct result of the defamation.45. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.
45a. A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.
Since both the above statutes refer to “unprivileged communications,” this is what the California statute defines in part in terms of what is privileged. I will limit this discussion to the “normal” situations in which a claim of privilege may arise since the statute contains many references to specific situations that are beyond the scope of this article.46. Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with
reference to his office, profession, trade, or business that has a
natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.
The above provisions regarding “privileged” communications are designed to strike a balance between the protection of the right of the individual not to be defamed and the right of the public or an interested segment of the public inherent in the value of free communications.47. A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: [exceptions excluded]
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. [further provisions excluded]
(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued. [further provisions excluded]
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
There are a number of defenses to claims of defamation in addition to those related to such privileged communications. A statement that is true is a complete defense to such claims in most states even though there are some states that require that the otherwise truthful statement also be published without the motive to actually harm the party written about.
Additionally, a statement that is not one of fact but instead is one of opinion could also be protected. However, it is not always clear what the distinction is and merely because someone phrases a statement as an opinion does not make it an opinion if it could otherwise be deemed to be a statement of fact. Often the courts speak of the difference as whether or not a statement contains provably false assertions of fact or instead is an expression of subjective judgment.
Further, claims of defamation are limited to living persons only and the living person must be identifiable in the writing or publication. Merely changing the names and other elements of a character or attempting to disguise a real life situation by changing facts is not necessarily a defense since a claim can be brought by any party who can be identified in the writing or publication. Further still, the mere fact that a work is a work of fiction does not serve as a complete defense since again, if the party can be identified, a claim of defamation may exist.
In certain instances, businesses and products can be the subject of claims of “trade libel,” which is a disparagement of the product or the business. In such claims, it is incumbent on the claimant to show that the writer and publisher knew the statements were false and wrote or published them anyway and also intended to injure the product or business.
There are special provisions for defamation in a newspaper or by broadcast in which the California law limits a party to getting only special damages (i.e. provable actual damages) unless the party has properly requested a retraction which has not been provided. There are additional issues presented by such kind of defamation, again because of the balance between the right to know on the part of the public and the right of the individual.
Writers and publishers should clearly note that the use of disclaimers is absolutely no assurance that the writer and publisher will be shielded from liability. Read “Disclaimers.”
Public figures including, among others, celebrities, politicians and those who thrust themselves or are thrust into public events, enjoy significantly less protection from statements that might otherwise be deemed to be defamatory than do “ordinary” persons. Because of the value of public comment on newsworthy events, the First Amendment requires that in order to establish defamation, such public figures must prove that the statements were false and were published with actual malice. Actual malice generally refers to statements made with knowledge of their falsity or in reckless disregard for whether they were false or not.
On The Internet
The Internet has made the ability to speak ill of another person online much easier and as a result, claims of defamation have the potential to grow commensurately. The above parameters of what constitutes defamation also apply online, subject to the provisions of 47 USC section 230. For a fuller discussion of issues related to online defamation, read “Defamation On The Internet.”
There are related but different issues generally placed under the category of “invasion of privacy.” I have written about these issues in “Rights of Privacy: An Overview.”
Given the propensity for claims, all manuscripts and other materials that are intended to be published should be reviewed by an attorney experienced in these and related areas of the law. Writers and publishers should also obtain appropriate liability insurance. Read “Publishers Liability Insurance” and “Online Liability Insurance.”
Copyright © 2003 Ivan Hoffman. All Rights Reserved.