Fault Required for Defamation

A defamation case focuses on whether the defendant is at fault for publishing defamatory statements. Common law rules, or rules created through judicial history, created strict liability on the part of the defendant. This meant that a defendant could be liable in a civil lawsuit for defamation merely for publishing a false statement. This was the case even if the defendant was not aware that the statement was false.

Defamation law cases involving First Amendment free speech later modified the common law rules. To protect the freedom of speech, these modifications were made in judicial proceedings involving public officials, public figures, or matters of public concern.

This article discusses defamation causes of action (claims) regarding public officials versus private persons.

Common Law Rules

Under common law, a defamation lawsuit plaintiff only needed to prove that a statement was defamatory. The court then presumed that a false statement of fact existed. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.

Public Officials and Public Figures

Defamation of character goes beyond a plaintiff's reputation as a private figure. In New York Times v. Sullivan, the Supreme Court recognized that strict liability rules in defamation cases could lead to undesirable results. This was especially true in defamation actions involving members of the press reporting on the activities of public officials.

Under the strict liability rules of common law, a public official had a much easier time winning a defamation suit. They did not have to prove that a reporter was aware that a particular statement about them was false. This could have the effect of deterring members of the press from commenting on the activities of a public official.

Under the rules set forth in Sullivan, a public official cannot recover from a person who publishes a harmful statement about a public official unless either:

• The defendant knew that the statement was false
• The defendant acted in reckless disregard of the statement's truth or falsity

This standard is referred to as actual malice. Malice, in this sense, does not mean ill will. Instead, the actual malice standard refers to the defendant's knowledge of the truth or falsity of the statement. Public officials generally include employees of the government who have responsibility for the affairs of the government. In order for the First Amendment rule to apply to the public official, the communication must concern a matter related directly to the office or the public interest.

Later cases expanded the rule to apply to public figures. A public figure is someone who has gained a significant degree of fame or notoriety. This can be fame in general or in the context of a particular issue or controversy. Even though these figures have no official role in government affairs, they often hold considerable influence over decisions made by the government or by the public. Examples of public figures are numerous and could include:

• Celebrities
• Prominent athletes
• Advocates who involve themselves in a public debate

Private Persons

Speech may be directed at a person who is neither a public official nor a public figure. The case of Gertz v. Robert Welsh, Inc. and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times Inc. v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if either:

• The defendant acts with actual malice (applying the standard under New York Times v. Sullivan)
• The defendant acts negligently in failing to ascertain whether a statement was false or defamatory

Other Considerations: Defenses & Damages

Suppose a defendant posts a statement about another person on social media. In general, an affected plaintiff can't win a defamation claim if the communication:

• Is a true statement (truth is an absolute defense)
• Comes off as a statement of opinion to a reasonable person
• Is made with qualified privilege (legal protection)
• Is made with absolute privilege (another type of legal protection)

Suppose the communication is an unprivileged and false statement of fact. But even winning a defamation case won't automatically mean the plaintiff will get money. A plaintiff can ask for:

• Compensatory damages to make them whole
• Punitive damages to punish the defendant if they acted egregiously

To get money, a plaintiff will usually need to prove actual damages, such as:

• Special damages which are quantifiable, such as medical expenses and lost earning capacity
• General damages for emotional distress (difficult to prove and may not be available in every state)

A plaintiff does not have to prove their damages if they win a defamation per se claim. This is in contrast to defamation per quod, which concerns a statement that is not inherently defamatory. A defamation per se claim involves allegations of:

• Criminal activity
• Sexual misconduct
• Infectious disease
• Bad business conduct

Have an Attorney Help You With Your Defamation Claim

It's not always easy to prove defamation, whether it's libel or slander. A defendant may or may not be at fault for damaging speech. These cases tend to be quite complex, so your claim may benefit from some legal expertise.

Get started today by finding a defamation attorney located near you. A defamation lawyer is a type of personal injury attorney who can give you legal advice regarding an allegedly defamatory statement.

Make sure to contact a lawyer sooner than later, as defamation cases have time limits known as statutes of limitations. Each state has a different time limit, after which you will be barred from filing your lawsuit.