Defamation DEFAMATION consists of two related torts: slander is done through oral statements; libel is done in writing. The elements of the prima facie case for defamation are: 1. 2. 3. 4. Defamatory Statement Falseness Publication (or "communicated") Injury or Damages
Defamatory Statement The defendant must have made a statement that would tend to lower the plaintiff's reputation; such a statement is defamatory. Falseness The statement made by the defendant must be false; a true statement is not a tort even if it greatly lowers the plaintiff's public reputation. Publication (or "communicated") The defendant's statement must have been published; that is it must have been heard or read by at least one person other than the plaintiff. Injury or Damages If the case involves slander, the plaintiff will not prevail unless he can prove that he has suffered some injury or damages as a result of the defendant's defamatory statement.
If the case involves libel, the plaintiff can win the suit even if he cannot establish actual injury. In such a case the plaintiff will be awarded nominal damages for example $1. EXAMPLE: Bill published the following on his blog: "Lurleen is one of the biggest cocaine dealers in the San Fernando Valley". (In fact Lurleen did not sell drugs.) Bill's statement is defamatory, since it could lower Lurleen's reputation. Bill's statement is false. The statement has been published seen by persons other than the plaintiff on the blog. Lurleen has suffered damages (but since this statement was made in writing and the case is one of libel Lurleen would win even if she had not shown actual injury). EXAMPLE: Bill published the following on his blog: "Lurleen is one of the biggest cocaine dealers in the San Fernando Valley". Assume that this statement is true. The suit by Lurleen would be unsuccessful -- if the statement made by the defendant is true there can be no defamation. EXAMPLE: Gerald had a daily show on cable TV. During the 2004 presidential election campaign he said: "John Kerry is much more dangerous to America than Osama bin Laden and all of the other terrorists". This is NOT defamation. The statement might lower Senator Kerry's reputation but it is a statement of opinion rather than one of fact. Only a statement of fact can constitute the tort of defamation. A statement of opinion cannot be defamatory. EXAMPLE: In 2006 Gerald said on his TV show: "Arnold Schwarzenegger spent so much time lifting weights that he destroyed his brain". This is in form a statement of fact. However it is exaggerated to make a point it should not be taken literally. Legally statements such are treated as opinion rather than fact they do not constitute the tort of defamation. Special rules apply to cases in which the plaintiff is a public figure.
A public figure is anyone who is a legitimate subject of public interest. All holders of public office or candidates for such office and former holders of such office are considered public figures. EXAMPLES: George W. Bush, Al Gore, Hillary Clinton, Bill Clinton. Persons who have made themselves famous (in almost any way) are also public figures. EXAMPLES: Brad Pitt (and other movie stars); Katie Couric (and other TV news personalities); Britney Spears (and other musical performers); Alex Rodriguez (and other sports stars) are all public figures. Some people become public figures when they are "thrust into the limelight" by events beyond their control. EXAMPLE: Lucia was kidnapped by terrorists. Since she is now a legitimate subject of public interest, she has become a public figure. Can a person lose his or her public figure status? YES if they have stayed out of the public view for a significant period of time. However some persons are too famous ever to fade back into obscurity; Bill Clinton all ex-presidents fall into this category. Others can also be "too big to fade". The elements of the prima facie case for defamation when the defendant is a public figure are: 1. Defamatory Statement 2. Falseness 3. Publication (or "communicated") 4. Injury or Damages
5. Actual Malice If the plaintiff is a public figure, the plaintiff must also establish "actual malice" in order to win a defamation suit Actual malice means that the plaintiff must show that the defendant knew that the statement was false or that the defendant published the statement with reckless disregard of the truth that is that the defendant published the statement without any concern as to its truth or falsity. EXAMPLE: In the early 1980's Time magazine published a story that said that Ariel Sharon at that time Minister of Defense in the government of Israel had encouraged Lebanese militias allied with Israel to massacre people in Palestinian refugee camps in Lebanon. Sharon sued Time for libel in an American federal court. The jury concluded that: 1. 2. 3. 4. 5. the statement was defamatory, since it lowered Sharon's reputation the statement was false Sharon was a public figure Sharon could not prove that Time knew the statement was false. While Time was probably negligent in not discovering that the statement was false, Time did not act with reckless disregard of the truth. Time did not act with actual malice. Sharon's suit was therefore not successful.