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Defamation law

Tort of defamation under United States Tort Law

March 9, 2023

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This article has been written by Nimisha Dublish of the Vivekananda Institute of Professional Studies (VIPS), GGSIPU, New Delhi. This article focuses on the tort of defamation law in the US. The article will be followed by some of the most famous cases of defamation of celebrities, along with clarity between a defamatory statement and the truth/opinion of a person.

It has been published by Rachit Garg.

Table of Contents

Introduction

Have you ever heard people saying bad and wrong things about you behind your back that will affect your goodwill and reputation in society? Have you ever felt angry and wanted to take action against them and teach them a lesson for talking bad about you and spreading rumors? The answer to all these questions is yes. Now you must be thinking about how and when you can take action against them. Right? So in this article, we will discuss every possible aspect of this topic and explore all the areas of defamation as a tort. A tort is a civil wrong that makes a claimant suffer loss or harm, which results in legal liability for the person who commits it.

Defamation

A statement that injures a party’s reputation is known as defamation. The statement must be false and be communicated to a third party.

What is defamatory

An act that conveys that the person is attempting to communicate false statements about another person in order to harm that person’s reputation and goodwill. This act is considered defamatory. The test for determining whether a communication or piece of information is defamatory is to see if the statement diminishes the plaintiff’s reputation; second, whether the statement exposes the plaintiff to ridicule or causes others to avoid the plaintiff.

Elements

As discussed, defamation means communication that harms the reputation of another party with the intention to lower its esteem in society. It is considered defamatory if it negatively impacts the reputation among a certain number of people in the community. These rules are laid down for general guidance only to determine whether the negative statement rises to the level of defamation. The following are the elements-

A false statement
Defamatory statement
Publication to third party
Harm to the plaintiff’s reputation

The statement has to be about the plaintiff for it to be considered defamatory. The name of the plaintiff doesn’t need to be mentioned. It can also be on the grounds of actions considered understandable by a reasonable person.

There should be communication with a third party. If the statement is only told to the plaintiff and not made public in any way, it is not defamation. There should be some level of culpability shown by the defendant. If a publication is completely true and the person who put it out there has a good reason to believe it is true, it is not considered defamation. The plaintiff must be accused of something in the statement made by the defendant, and this should cause harm to his reputation as well. Only a bad statement or criticism would not amount to defamation.

Defamation in the case of public figures and celebrities

Nowadays, it is really common that defamation cases mainly involve public figures or celebrities. Politicians, athletes, national speakers, and representatives are always in the spotlight in public and are likely to be part of a defamatory statement. The law recognizes the difference between discussing some public concerns and defaming a person by discussing something derogatory about him/her. It is crucial for the media houses, especially, to draw the line between these two to escape the fear of litigation.

In order to settle this down, the United States Supreme Court, in a ruling on the landmark case New York Times v. Sullivan, decided that there is a higher standard for defamation when the plaintiff is a public official. In Sullivan, a police official sued The New York Times because it had run an ad about how an Alabama police department had treated civil rights protesters badly. Sullivan alleged that the ad inaccurately reported important details of the event in question. The Court ruled that as a public figure, Sullivan had to show more than mere carelessness or negligence on the part of the newspapers. The Court ruled that public officials must show actual malice on the part of the publisher of the defamatory remarks. “Actual malice” means that a plaintiff must demonstrate that the publisher knew that the statement was false or acted with reckless disregard for the truth of the statement. The need to prove actual malice now applies to professional athletes, actors, and high-profile anchors as well.

A brief analysis of defamation law

The United States’ defamation laws can be traced back to the American Revolution. John Peter Zenger was an influential person back in 1734 and established the precedent of ‘The Truth’ as an absolute defense for libel. The Supreme Court, however, failed to use this in libel cases, as it was given in the First Amendment of the U.S. Constitution. However, the case of New York Times v. Sullivan was a turning point for libel law in the US, and it established that public officials can sue and win cases of libel only if they can prove that the media house either knows the information to be untrue/false or that it was published with reckless disregard.

The law of defamation is not uniform throughout the US. There is a separate legal system for each of the 50 states of the US. It has its own body of tort law, which is largely based on common law but has been modified by state legislative action and judicial oversight. As mentioned, each state has the power to act and individualize its defamation laws.

In American courts, it must be proven that the alleged statement is false and that the defendant was at fault for publishing it. To obtain First Amendment damages, defamation had to be coupled with actual injury.

The tort of defamation in the US comprises both libel and slander. In the case of slander, actual and special damages must be proven by the plaintiff.

Libel and Slander

Libel is considered defamation that is in written form or is communicated to a larger audience. In cases of libel, there is no need to show special damage, and the plaintiff can recover without any need to prove that actual economic harm has been done.

Slander, in layman’s terms, is a type of defamation that is not libel. This means that it is not written and not communicated to larger audiences. In this case, there is a need to prove that the plaintiff has suffered actual loss and that harm has been inflicted upon his reputation by the defendant. Normally harm is shown in terms of economic value like business reputation, etc. There can be the harm in personal stuff as well like friends, marriage, engagement, etc. There are a few exceptions to special damages when it comes to slander. Some defamatory comments are so outrageous in their potential to ruin a reputation that there is no need for the plaintiff to provide concrete proof of injury. False claims that somebody committed a significant crime, had a serious infectious disease, was unqualified to perform his job, or engaged in serious sexual misconduct are included.

Libel per se

The written statements that are very evident and widely understood to be harmful and derogatory will definitely affect the plaintiff’s reputation. For example, false claims made under the following head-

Crime commission
Infectious disease
Engaged in adultery

Slander per se

It is the spoken form of libel per se. Any statement made by a person that is so obvious to be harmful to the reputation. It includes some of the following-

Bad business dealings
Indulged in criminal activity
Improper sexual conduct

Burden of proof

In the US, it is the plaintiff who carries the burden of proving the falsity of the statement. This is a mandatory provision as per the Constitution, meaning that regardless of whether the plaintiff is a public or private figure, whenever the media is involved in cases of defamation, the Constitution makes it an element of the plaintiff’s claim.

Defenses for defamation cases

There is a concept of statute of limitations that requires actions against the defendant to be commenced within one year after the first publication of the defamatory statement. A new limitation period starts for newly released editions. For example, New York released a paperback edition of a previously released hardcover.

A plaintiff who is alleging defamation must prove that there is a false statement. Mere expression of opinion is rarely actionable under US laws. The views that are based on facts given in a publication are protected under subjective interpretations. Likewise, statements that can be classified as “rhetorical hyperbole” or “lusty and imaginative” expressions are not actionable.

These defenses under defamation can be classified into the following categories-

Truth

Truth means that the statement given is of pure and true nature. It is a fact that exists. Whereas defamation means false statement. This acts as an absolute defense in cases of defamation. If the statement is accurate and true then it shall not amount to defamation.

Opinion

It is established that defamation is a false statement or untrue fact. A statement that contains the mere opinion of a person shall not amount to a defamatory statement. For example, Alex told Samuel that he thinks that Hike beat his girlfriend last Sunday. As a result of this statement, Hike lost his job and friends. Alex, in his defense, says that this was just his opinion. Just because Alex used the term “I think” doesn’t mean that the statement was the opinion.

The jury looks into all the circumstances that surround the defamatory statement. This also includes what a person knows about the person defamed, what were his relations, and why a person would have made the statement. If the jury determines that you made a specific statement and are now attempting to conceal or cover it up, you will be held liable for defamation.

Absolute privilege

The term absolute privilege means that the person making the statement had the absolute right to make such a statement at that time. Even if it is defamatory, it was allowed and empowered by law. Persons are exempted under absolute privilege if such a defamatory statement is made under or during any of the following-

Judicial proceedings
High government officials
By legislators at the time of legislative debates
Political Broadcast
Political speeches
Between spouses

So one cannot be sued for saying a defamatory statement under judicial trial, but if such a statement is made during break time in the corridor, one can be sued for defamation because the statement was made outside the judicial proceeding.

Qualified privilege

Qualified privilege means that the person had some right to make a certain type of defamatory statement. If a qualified privilege applies to a statement made by the person, then it means that the burden of proving that the statement was an act of intention and was made recklessly by the person lies with him or her.

A few cases in which this applies are as follows-

Government reports containing statements related to official proceedings.
Testimony of citizens at the time of legislative proceedings.
Statements made in self-defense.
Former employee’s statement to the upcoming or potential employee.

Trial

There are remedies for a defamatory statement, which include both monetary and injunctive relief. However, in the US, injunctive relief is very rarely achieved as it is considered unconstitutional as per the First Amendment. Without proving actual malice, a plaintiff can easily recover compensation for the actual injury inflicted upon him. But in the case of punitive damages, they are only recoverable when a high level of fault is proved by the plaintiff. Punitive damages can only be claimed when the plaintiff successfully proves that there was both actual and common malice, including reckless disregard for the plaintiff’s rights.

Personal privacy

In the majority of US states, the right to privacy is well established. These include the following-

Intrusion on Privacy
False light
Public disclosure of private facts
Misappropriation

When anyone unreasonable and highly interferes with another’s interest is termed as an invasion of privacy as per the state laws. Invasion of privacy is considered as interfering in one’s business which he/she doesn’t want to publicize. In this situation, the damage is presumed. The First Amendment has held the right to privacy as a qualified ground to bring upon the action. However, a publication containing true facts which are lawfully obtained is protected under the First Amendment.

The methods used to obtain information secretly come under intrusion actions. These are invoked by the persons who got recorded by the hidden cameras in news, magazines, and private workplace. For example, it is the reasonable right of an employee that his conversation should not be broadcast on television.

Public disclosures involve the revealing of true facts that are too private to share. These are often related to one’s sexuality, health, or past behaviors. The establishment of the facts as newsworthy will defeat the public disclosure claim.

The right to privacy is invoked by non-public figures when they feel the media have somehow exploited them, while the right to publicity is invoked by celebrities who feel that the media have deprived them of their right to control and profit from the commercial use of their likeness or name.

Johnny Depp recently won his defamation suit against his ex-wife Amber Heard in the year 2022. At the same time, Blac Chyna lost her case against the Kardarshian-Jenners. It is more difficult for public figures to win a defamation suit than it is for private persons. In the case of private persons, they only need to prove that a reasonable person would not have made the defamatory statement and that the defendant made that statement negligently. Whereas, public figures need to show that the statements were made with reckless disregard for the truth.

Such tension exists because of the very high standard that exists between defamation laws and freedom of speech. Freedom of speech allows citizens and journalists to make specific interest statements that include public personalities, without any fear of getting sued. Public figures generally tend to be under more public scrutiny than private persons.

Case Laws

The People of the State of New York v. Harry Croswell (3 Johns. Cas. 337 (N.Y. 1804))

In the year 1804, Harry Crosswell lost this libel suit. The Supreme Court of New York did not accept truth as a defense. After a year, the New York State Legislature changed the law and allowed truth as a defense against the charges of libel. The suit was followed by the other states and the federal government

New York Times Co. v. Sullivan (376 U.S. 254 (1964))

In this case, it was held by the Supreme Court, that the public officials could only win a suit in libel when they could actually demonstrate and prove that there was actual malice on the part of the publisher and reporter. Here, actual malice means the knowledge that the information given was actually false. This decision also covered public figures like celebrities, government officials, etc.

Hustler Magazine v. Falwell (485 U.S. 46 (1988))

In this case, Jerry Falwell was shown in a parody advertisement. In this, he was shown in an incestuous act with his mother; this was false. Still, Falwell didn’t win damages for emotional distress because the court said that the statement was so ridiculous and obvious that it was clear to be untrue. It was an untrue allegation that no one believed. As a result, the author was not held liable. His claim against libel was brought down, and he was only awarded for emotional distress.

Depp v News Group Newspapers (EWHC 2911 (QB) (2020))

This was a very high-profile case of the year 2020. There was a claim by Johny Depp against the Sun newspaper publisher. The newspaper published an article titled “wife beater Depp.” The judgment was concluded after a 128-page long trial. It was held, “The Claimant has not succeeded in his action for libel. Although he has proved the necessary elements of his cause of action in libel, the defendants have shown that what they published in the meaning which I have held the words to bear was substantially true.”

Gubarev v Orbis Business Intelligence Ltd (EWHC 2912 (QB) (2020))

This case talks about a defamation trial related to the publication of an article that alleged that claimants took some actions to sabotage the leadership of the democratic party for the period of March- September 2016. The defendant was legally responsible for such publication and printing it out to the general public.

St. Amant v. Thompson (390 U.S. 727 (1968))

In this case, the bench referred to the infamous case of the New York Times and said that the defendant acted with ‘reckless disregard’ with respect to the defamatory statement made. There is a need to bring out sufficient evidence to show or conclude that the defendant had serious doubts as regards to the truth in the publication. As per the settled law, defamation by public officers/officials is not measured by reasonable prudence.

Conclusion

In the US the laws against the tort of defamation are different for each state. But they do have some common grounds and a basic foundation for the law. Defamation is seen as something which harms a person’s reputation and there are some laws to protect them. It is mainly public figures like celebrities, government officials, politicians, etc who face defamation and false allegations. However, their rights are guaranteed under the First Amendment.

Frequently Asked Questions (FAQs)

Is defamation legal in the US?

It is not a crime in most of the states in the US, but it is a tort. The person can be sued for defamation to claim damages.

Can a person be sued for defamation of character?

If the statement made by the person harms or hurts your reputation, then you have grounds to seek financial recovery under the law. A lawsuit for defamation of character may be filed, but it doesn’t qualify as a criminal offense. It is strictly a tort, or a civil wrong.

How tough is it to win a defamation suit in the US?

In the US, it is very challenging for a person to win a defamation case. The reason is that there is a lot of fact-finding and it requires the assistance of an expert as well. So it becomes a costly affair as well.

References

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