General Principles of Defamation 2

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Who Can Be Defamed

Essentially, any living person, corporation or other legal entity can be defamed.

Unincorporated associations cannot sue for defamation although individual members of those associations can sue if defamatory statements about the association clearly defame them.

No action for defamation can be brought on behalf of people who are deceased. See Keys v. Interstate Circuit, 468 S.W. 485 (Tex. 1971). However if a defamatory statement against a deceased person also defames a living person, the living person can bring a cause of action. For example:

Julius says to a third person that Ethel, a deceased person, had no children that didn’t spend time in prison. In this situation, any of Ethel’s children that have never been to prison can recover for defamation.

In situations where a defamatory statement is made about a group of people, the individual members of that group will not be able to recover unless the group is so small that the defamation can be ascribed to each member of the group. See Neiman-Marcus v. Lait, 13 F.R.D. 311 (1952). For example:

1. Rob Ryan, a reporter for a sports magazine writes that “all athletes are drug abusers”. In such a situation, no individual athlete can bring a cause of action for defamation because the group that is defamed is so large that the statement can not be reasonably interpreted to apply to any specific person.
2. Rob Ryan, a writer for a sports magazine writes that “the members of the Boston Celtics are all drug users”. In such a situation, the individual players for the Boston Celtics may have a cause of action. Although the statement targets a group, the group is small enough that the defamatory statement could be ascribed to each individual player.

In addition, if a group is small enough, any defamatory statements targeted at some members of the group may be actionable for all members of the group. For example:

Rob Ryan, a writer for a sports magazine, writes that “some members of the Boston Celtics are drug users”. In this situation an accusation is leveled against part of a group. However, because the group is so small (there are only 12 players on the Boston Celtics roster) the accusation against some could be ascribed to all members of the team. Thus each individual member would have a cause of action.

Falsity of Statements

In bringing a cause of action against a defendant, the plaintiff must claim that what the defendant said about him was false.

However, the burden of proving that the statement was true is on the defendant. Although, if proven, truth is a complete defense to a charge of defamation. See Craig v. Wright, 76 P.2d 248 (Okla. 1938). Thus, if the defamatory statement is true, the plaintiff will not have a viable cause of action, even if the defendant’s motives for making the statements were malicious, and even if the defendant did not know that his defamatory statement was true at the time he made it.

While the defendant must prove the truth of his statement, he does not have to prove the absolute truth of his statement. As long as the defendant can prove the general truth of his statement, he will not be held liable. See Posadas v. City of Reno, 851 P.2d 438 (Nev. 1993). For example:

Henry tells a third person that Tucker stole a brand new Cadillac SUV. In fact, Tucker stole a beaten up twenty-year-old Dodge Pinto. For the purposes of his defense, Henry’s statement may be considered true despite the fact that Tucker stole a Pinto and not a new Cadillac.

The fact that truth represents a complete defense to any charge of defamation arises from the first amendment of the United States Constitution which guarantees our freedom of speech. This right is especially important when it comes to criticizing our government officials. In fact, because freedom of speech plays such an important role in establishing our ability to criticize public officials, where a defamation case involves a public official, the constitution requires that the public official, and not the defendant, bear the burden of proving that the defamatory statement is false. 

Truth as a defense can only apply in cases where the defamatory statement is a statement of fact. That being the case, there is no automatic defense for statements of opinion, which cannot be categorically proven to be either true or false. Because opinion cannot be proven true or false, the court will look to the effect that the statement has on the plaintiff’s reputation in order to determine liability. 

Thus, if the defendant utters an opinion about the plaintiff that the community does not believe and does not diminish the plaintiff’s reputation, the plaintiff will not have a cause of action against the defendant, even if the defendant’s statement was said out of malice.

Furthermore, statements that are made in the course of public debate that are either exaggerations or gross exaggerations will not give rise to liability because the audience generally expects to hear a certain measure of exaggeration in public debate and will not take these statements as assertions of fact. For example:

George and Bill are running for President and they are engaged in a nationally televised debate. At one point George says to Bill “you have never made a good decision in your entire life.” In such a case, Bill will not have a cause of action because nobody listening to this debate will actually take that statement to be an assertion of fact.

Causation

The plaintiff must show that the defendant’s defamatory statement was the actual and proximate cause for his diminished reputation.

Damages

As we said earlier, defamation is an umbrella term that encompasses two kinds of statements: libel and slander. Libel is defined as defamation which appears in some written or permanent physical form such as newspapers, books, or audio cassettes. Slander is defined as oral defamation and is, by definition, less permanent than written defamation.

Because libel appears in a permanent physical embodiment, it is the more severe of the two forms of defamation. For that reason, and for the reason that the scope and extent of liability hinges on which form of defamation the defendant has committed, it is important to determine what kind of defamation the defendant has actually committed. That being the case, in situations where it is difficult to determine which kind of defamation the defendant committed (ex: defamation broadcast over the radio or by television), the courts will use the permanency of the form of the publication and the extent of the dissemination to determine whether or not the defamation is libel or slander (please note that most jurisdictions today consider radio and television publications as libel). See Whitby v. Associates Discount Corp., 207 N.E.2d 482 (Ill. 1965).

Slander itself is divided into two categories.

There is slander per quod (ordinary slander), and slander per se.

The general rule is that slander per quod is not actionable unless the plaintiff can demonstrate special damages. Special damages are damages actually suffered by the plaintiff.

However, slander per se is actionable even without showing "special damages".

There are only four situations which are considered slander per se and they are where the defendant has accused plaintiff of:

1. committing a serious crime
2. having a “loathsome” disease
3. being incompetent in his profession and
4. being "unchaste".

First, if the defendant publishes a defamatory statement either accusing the plaintiff of a morally reprehensible crime or saying that the plaintiff has been imprisoned for such a crime, this is slander per se. Please note that the defendant does not have to actually name the specific crime he is accusing the plaintiff of, so long as his statements infer that the crime was morally reprehensible. See Hruby v. Kalina, 424 N.W.2d 130 (Neb. 1988).

Second, statements implying that the plaintiff has a “loathsome” disease are slander per se. For these purposes, loathsome diseases are limited to sexually transmitted diseases and leprosy. See Rade v. Press Publishing Co., 37 Misc. 254 (1902).

Third, statements implying that the plaintiff is inept or corrupt in his business dealings are slander per se. However, in order to be actionable these statements must be incompatible with the plaintiff’s profession. Thus, calling a banker an embezzler would be slander per se because it is incompatible for people who deal with money to steal money. However, saying that a banker generally drives thirty miles above the speed limit is not slander per se because it has nothing to do with his business practices. See MacLeod v. Tribune Publishing Co., 52 Cal.2d 536 (1959).

Fourth, statements implying that the plaintiff is unchaste are slander per se. Traditionally, causes of action arising from statements implying unchastity were only available to female plaintiffs. However some jurisdictions now allow male plaintiffs to bring causes of action under these circumstances as well. Some jurisdictions also allow causes of action for statements accusing male plaintiffs of impotency. Finally, false accusations of homosexuality are also considered slander per se.

Where the defamation is libel and the libel is clear on its face, courts will award general damages without requiring the plaintiff to show "special damages".

The important rules to remember here are:

Further, most jurisdictions today allow punitive damages if the plaintiff can show that the defendant made his defamatory statement out of malice.

However, please be aware that the United States constitution forbids punitive damages for defamation involving matters of public concern so long as the defamation was merely negligent and not intentional.

Finally, several states have adopted retraction statutes which allow the defendant to avoid liability for general damages if they promptly publish a retraction of the defamatory statements after the plaintiff has formally demanded that the defendant do so.

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