Defamation

Generally, what does a plaintiff need to prove in a journalism or citizen media-related defamation case?

• A false statement of fact.

• The statement was about or concerned an identifiable plaintiff.

• The falsehood was published to one or more third parties.

• The defendant was at fault for getting it wrong.

• The plaintiff’s reputation was damaged by the statement.

When it comes to proving a statement was published, showing something was openly distributed on the World Wide Web is a virtual slam dunk.  But even posting something in a members-only online community or sending out an e-mail to a third party can suffice.

Defamation-related claims can extend to more than just written or spoken words.  Use of photos, videos and other images can also serve as lawsuit fodder when those images are doctored or used in a misleading way.  An example: using someone’s photo to illustrate a posting about some unsavory activity that falsely links the person with scandalous behavior in a believable way (as opposed to obvious parody.) Whether the scandal is real or imagined, there could be a claim for libel.  In some states, there could even be a privacy-related claim asserting that the use of the person’s image placed that individual in a false light in the eyes of the public.  Under a false light claim, there is no need to show damages.

In many defamation cases, damages can be presumed.  An injurious falsehood about someone in his/her line of work, such as a false dig about a doctor’s hygiene or an English teacher’s writing ability, can lead to a damages presumption.  Accusing someone of “moral turpitude”, “sexual promiscuity”, criminal conduct, or having a “loathsome disease” can likewise fall into a damages-presumed category. As you can tell from the categories of presumed damages, defamation law goes way back.

When you’re writing about a neighbor or a colleague or a local business and asserting an injurious statement of fact — as opposed to opinion — it’s important to try to be accurate.  Not only is truth a complete defense, but even if you get it wrong, you have First Amendment protection if you can show you tried to get it right and were careful in your reporting.

When writing about a public official or public figure, you generally have even greater First Amendment protection.  You can defend yourself by showing an “absence of malice”, meaning that you did not “recklessly disregard the truth.” Sometimes though, determining who is private and who is public for defamation purposes takes a judge and jury.  It’s clear your representatives in Congress are public officials and Madonna is a public figure while your average manicurist, lawyer, neighbor, or teacher is private.  But a private person can cast himself or herself into the limelight, making that individual a limited purpose public figure.  And publicly owned corporations can be considered private entities in defamation cases.

In some instances, such as when you are reporting on information disclosed in a court proceeding or public hearing or government document, you can have protection for a “fair report”.  Your account of the session or contents of the government document, assuming it is accurate, generally will be protected by the courts.  In some jurisdictions, there also is a neutral reporting privilege that can protect the neutral reporting of defamatory statements made by prominent figures about each other. 

You also can effectively counter a defamation claim if you can show that the statement in question wasn’t a false statement of fact, but an opinion.

There are some areas where the risk of defamation is reduced.  Generally, dead people can’t be defamed.  Some people’s reputations are so bad — think Charles Manson — that they can be deemed libel-proof.  And there is protection for parody, which, by definition, is intentionally false.  (Just make sure that the parody is obvious to your audience.  Some lawyers even recommend that parody be labeled as such.)

Return to Rule 1.

(c) Geanne Rosenberg