Legal Law

An Training On Defamation

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In my most recent column, I skimmed the surface of our First Amendment free speech rights, prompted by comments made by Prince Harry, labeling the First Amendment as “bonkers.” I discussed the fact that here in the United States, the government cannot persecute or prosecute you for what you say or write. It doesn’t matter how unpopular or hateful the speech might be — so long as the communication is not creating an imminent danger or risk of unlawful behavior, the First Amendment protection is generally afforded. In short, the government cannot punish dissent by limiting exercise of free speech.

But what about nongovernmental entities and people? Can you take action when someone says or writes something about you that you may find offensive or false? In certain circumstances and within certain limitations, yes. There exists a private right of action against those who spread negative misinformation. We call that defamation, and it is an area of law to which I have chosen to dedicate much of my career. I can talk all day about defamation, but for this article, I’m going to do my best to simply introduce the two of you.

Before I get into the details, let me take a moment to pump you up for what you’re about to hear. I sometimes refer to defamation law as “gossip law” — it is a chance for someone to fight for their reputation when others have tarnished it with false rumors and outright lies. Did someone spread a terrible rumor about you in middle school? Depending on the content of the rumor and the way it damaged you, you could have sued that bully using our good friend, defamation law. (It should be noted that most states have a very short — blink and you missed it — statute of limitation of just one year from the date of communication, although a few states give you two to three years. Regardless, the window of time to sue your middle school tormentor has likely closed.)

Now onto the facts: Defamation is the umbrella term for both libel (written defamation) and slander (spoken defamation). Defamation laws have been established and litigated for centuries, dating back to the 1700s. From the onset, the courts established that “truth” is an absolute defense to defamation claims. This remains the controlling precedent, and still today anything you say or write — no matter how negative and damaging — is not defamatory so long as it is true.

A conclusive definition of what constitutes defamation in the United States is difficult, since it is defined differently state by state. Each state has established its own set of standards and elements a plaintiff must meet to successfully plead a defamation claim. In general, a statement -– whether spoken or written –- is defamatory if (1) it is a false statement purporting to be fact, rather than an opinion; (2) the statement was published or communicated to a third party; (3) it was communicated with fault amounting to at least negligence; and (4) communication of the statement caused harm to the plaintiff.

But there’s a twist (I told you that defamation law is fun and exciting). There’s a very special part of defamation law that doesn’t require that the plaintiff be damaged in any way — this is when the communicated statement constitutes what we call “defamation per se.” The best way to summarize defamation per se is that the statement is so bad that damage is simply presumed. This once again varies by state, but may include statements accusing someone of a crime, an inability to perform their profession, an immoral act, or a loathsome disease. The thought process behind this exception to damages is that if someone were to publish claims that you robbed a bank, even if you haven’t lost your job due that statement, such claims could follow you and affect your standing in the community or future earnings.

There are many interesting aspects to defamation law, which I won’t get into now but hope to in the future. You don’t have to say something outright for it to be defamatory. You could imply it, like if you were to say, “Bob was standing near the door to the women’s locker room. I’m not saying he was peeping … but you know …” and Bob (depending on the state) may have a viable claim against you. There’s also “false light,” which is a privacy tort and cousin of defamation. It is sadly not recognized in New York but is an available cause of action in other states, such as California. An example of false light is publishing a photograph of a local farmer next to a headline that says “Bestiality on the Rise.” By using that farmer’s image, even if he wasn’t the subject of the article, the publication has placed the farmer in a false light, creating an impression that the farmer was more than just friends with his animals.

Defamation law experienced a turning point in 1964 with the case New York Times v. Sullivan. This part should be of particular interest and concern for Prince Harry, who some may remember was the original catalyst for this multi-article series on protected speech (although I have clearly detoured). This landmark case, cited in most briefs I’ve encountered in defamation cases, held that public officials and public people (i.e., celebrities) could only win a defamation lawsuit if they could prove that the defendant acted with “actual malice,” meaning the defendant either knew that the information was false or acted “with reckless disregard of whether it was false or not.” As an example, let’s assume for a moment that Lucille Bluth and Buster Bluth were real people and not just characters on the significantly underappreciated “Arrested Development.” If TMZ published a story falsely claiming that Lucille had committed tax fraud, based on Buster telling them Lucille had done so, then Lucille would have a viable claim for defamation against TMZ. This is because TMZ would have published the story without any due diligence into whether it was true. However, if TMZ published the story “Buster Bluth accuses Lucille Bluth of tax fraud” they’d be in the clear since that is a truthful story — Buster did in fact make that accusation in this fun little hypothetical about the thrilling world of defamation law.

This heightened standard could present a problem for Harry and for Meghan should they ever pursue a defamation case in the United States, because each is clearly a public figure and thus has to meet a higher burden than you or I would have to meet. They’d have to prove that the defendant acted with actual malice. I am not an expert in U.K. defamation law and thus do not know how this additional burden would have affected any of their previous lawsuits — those of which involved defamatory content. Since Harry and Meghan filed six separate lawsuits between Fall 2019 and Fall 2020 (mazel tov to the attorneys they keep on retainer!), I would need to write up few more articles to cover the effects U.S. laws would have had on their cases. What I do know is that the U.K.’s defamation laws differ from those in the U.S. in one very significant way: In the U.K., the burden is on the defendant to prove that his or her statement was true; in the U.S., the plaintiff bears the burden of proving the falsity of the statement. That’s a fairly material shift that would certainly affect any case.

It remains to be seen if the Sussexes file any defamation lawsuits with the U.S. courts, and perhaps I’ve given them some information to consider before they do so. As for you, the actual reader, I hope I have shed some light on this fascinating and ever-evolving area of law. While we have the First Amendment protecting our free speech rights, there are repercussions for spreading false information about someone else. We have a system in place that allows a person who has been harmed by false communications to seek justice and hopefully recoup any losses they experienced as a result of those communications. So you may not be forced to shut your mouth, but you might have to open your wallet.


Diana Warshow is Senior Counsel at Nesenoff & Miltenberg, LLP in New York, NY. Practicing law since 2008, Diana’s work focuses on defamation and Title IX law. She represents clients in libel and slander claims against media companies, written publications, tech companies, blogs, and social media sites. She also represents students in disciplinary proceedings at high schools, colleges, and post-graduate institutions around the country. You can reach her by email at DianaWarshowEsq@gmail.com and connect with her on LinkedIn.

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