General Principles of Defamation 1

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Where the laws of torts, negligence, strict liability and products liability generally focus on protecting the plaintiff from damage done to his person or property, the laws of defamation protect the plaintiff from damage done to his reputation.

The laws of defamation are divided into two distinct categories: libel and slander. Libel is defined as written defamation. Slander is defined as oral or spoken defamation. We will examine the differences between libel and slander a little bit later. For now, let's go over some of the general principles that govern the laws of defamation.

Under the common law, a prima facie case of defamation required the defendant to publish, to a third person, a statement that harmed the reputation of the plaintiff, thus causing damage to the plaintiff. 

Under the common law, defamation gave rise to strict liability. However, the common law is superceded by the United States Constitution. The first amendment of the Constitution eliminates strict liability in defamation cases because of the adverse affect it would have had on freedom of speech. Essentially, if strict liability were applied in every case of defamation, people might be constrained from saying things they may have the constitutional right to say.

Because the Constitution was concerned about this potential limiting of freedom of speech, the Supreme Court has eliminated strict liability from defamation cases.

One of the key elements in the prima facie case of defamation is the requirement that the statement be published. Therefore, in order for an action of defamation to arise, the defendant must communicate his defamatory statement to someone other than the plaintiff. See Simpson v. Mars, Inc., 929 P.2d 966 (Nev. 1997).

Please note that publication to any third person satisfies this requirement for defamation. Thus, publication to the plaintiff’s friends, relatives, children and spouse will suffice. Further, the definition of publication is not limited to printed or oral statements. Any action by the defendant that causes a defamatory idea to be communicated to a third person about plaintiff is considered publication. See Kmart Corp v. Washington, 866 P.2d 274 (Nev. 1993).

Further, in order to recover for defamation, the plaintiff must prove that the defendant intentionally communicated the defamatory statement to a third person, or that the defendant negligently failed to exercise due care in making sure the statement was not published. See Barnes v. Clayton House Motel, 435 S.W.2d 616 (Tex. 1968).

The issue of negligence in defamation usually arises in a situation where the defendant is communicating directly with the plaintiff but some third person has overheard or seen the communication. In such a situation a cause of action will arise only if the defendant had reason to foresee that a third person would overhear the communication and there was a reasonable way to avoid the third person overhearing the communication which the defendant did not utilize. For example:

Pierre, an American, is married to a Frenchwoman. Pierre speaks no French. George writes a defamatory letter about Pierre in French and mails it to Pierre. In such a situation it is foreseeable that Pierre will show the letter to a third person, his wife, so that she will translate it for him. George could reasonably have foreseen that Pierre would show the letter to his wife and writing the letter in English would have been a reasonable way to avoid publication to the third person. Thus, in this instance publication through negligence is satisfied.

Further, if the defendant makes a defamatory statement to the plaintiff and publication to a third person comes about because the plaintiff himself is forced to repeat the defamatory statement, there is a split of authority as to whether or not this satisfies the publication requirement. See Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988). For example:

Brian, an honest and hard working college student, is unfairly expelled for cheating on a final exam. When Brian applies for acceptance to another university he is forced to admit that he has been expelled from another school for cheating. In this situation, the accusation that Brian’s first school leveled against him is the defamatory statement. Communication to a third person, the second school that Brian tries to get into, occurs because Brian himself is forced to repeat the original defamatory statement. Some jurisdictions consider this as satisfying the publication requirement. However, certain jurisdictions do not, and, in those jurisdictions, Brian would not have a cause of action for defamation.

As we have just seen, the plaintiff himself, in certain situations and in certain jurisdictions, can be the publisher of the defamatory statements that have harmed him. There are three other kinds of defendants who can be held liable for defamation:

1. Original publishers
2. Re-publishers, and
3. Disseminators.

An original publisher is anyone who has played a part in the original publication of the defamatory statement. Authors, their book publishers, newspaper reporters and editors, are all considered original publishers and could be held liable for defamatory statements.

A re-publisher is someone who repeats someone else’s defamatory statement. For example:

Opie, a radio disk jockey, reads passages from a newly published book while doing his morning radio show. The book in general, and the passages read by Opie in particular, defame Anthony. In this situation, the book’s author, and possibly his editor and publisher, are all original publishers. The disc jockey however is considered a re-publisher because he has repeated someone else’s defamatory statements.

Repeating someone else’s defamatory statements is not the only way to republish a defamatory statement. For example, if Opie pastes a leaflet onto the front door of Howard’s home and that leaflet defames Anthony, failure to remove that leaflet may be considered negligent republication on the part of Howard.

It is safe to assume that republication of defamation will increase the damage inflicted on the plaintiff. If that is the case, the original publisher of the defamation is also liable for the damage done by the republication, so long as the republication was either intended by the original defamer or if the republication was reasonably foreseeable.

In certain situations, people are under a legal obligation to repeat information they have. Anybody with a legal duty to repeat information is absolutely privileged to do so and the plaintiff will not have an action against them if the information they repeat contains defamatory material.

A disseminator is someone who deals with defamatory material in its physical form. Newspaper stands, book stores, libraries and, in some cases, music stores are disseminators.

Disseminators are typically held to a more relaxed standard of liability than original publishers and re-publishers. A disseminator will not be held liable for defamation if he does not know that the material he is dealing in contains defamatory statements and has no reason to know of the presence of defamatory material. Further, disseminators are under no obligation to examine the material they deal in for defamatory material.

As we said before, in order for the plaintiff to have a viable cause of action against the defendant, the defamatory statement has to have had the potential to hurt the plaintiff’s reputation. In order to determine whether a defamatory statement has the potential to injure the plaintiff’s reputation, the court must determine two things,

1. whether the meaning of the defendant’s statement is defamatory and
2. If the meaning is defamatory, whether or not the statement can be interpreted to actually have that meaning.

Let us look at each element separately.

In order to satisfy the first requirement, that the defendant's statement is defamatory, the statement must diminish the plaintiff’s reputation in the eyes of his community or discourage other people from associating with the plaintiff.

Please note that because the barometer that we use to determine defamation is what the plaintiff’s community thinks, the court does not care what the defendant meant when he uttered his defamatory statement. The court focuses on what the third person understood the statement to mean.

A change in attitude toward the plaintiff by a significant minority of the plaintiff’s community is enough to establish defamation. That is to say, if the plaintiff lives in a community of one hundred people and the defendant’s defamatory statement lowers the plaintiff’s reputation in the eyes of three of those people, this statement will most likely not be considered defamation. However, if the plaintiff’s reputation is diminished in the eyes of thirty people, the defendant’s statement will most likely give rise to a cause of action.

A plaintiff whose reputation is sullied to begin with may have a difficult time bringing a defamation case no matter how outrageous the defamatory statements made against him were, because his reputation is such that   the defamatory statements might make no difference to how the community views the plaintiff. For example, if Timothy McVeigh were alive today he would be unable to bring a defamation lawsuit. His reputation is held in such low regard that no defamatory statement could lower it any further. See Jackson v. Longcope, 476 N.E.2d 617 (Mass. 1885).

As we said before, the second prong in determining whether or not a statement has the potential to injure the plaintiff’s reputation is determining whether or not the statement can be interpreted to carry a defamatory meaning. In determining this, courts will look at what a reasonable person would naturally interpret the statement to mean within the context in which the statement appears. See Romain v. Kallinger, 537 A.2d 284 (N.J. 1988). For example:

The following statements appear in the sports page of a popular newspaper: “Ricky Henderson has stolen over one thousand bases in his 22 year major league career. He is truly a master thief.” In such a situation, if Ricky Henderson were to bring a defamation suit against the newspaper for calling him a thief, the court would look at the statement “he is truly a master thief” within the context of the rest of the article. The article is discussing and praising Ricky Henderson’s base stealing prowess. Thus, in the context within which the statement “he is truly a master thief” was made, no ordinary person would take that statement as a literal accusation of criminal activity. Therefore, the statement “he is truly a master thief” is not actionable.

Please note that while a statement made within the context of a larger article will be examined in the context that it was written, the same rule does not necessarily apply to headlines. In other words, courts will not examine articles to provide context for potentially defamatory headlines. For example:

The following headline appears in the sports page of a popular newspaper: “Ricky Henderson is a master thief”. In such a situation Ricky Henderson’s action might be viable. Although the article that follows the headline discusses his base stealing prowess and, thus, provides a context in which the headline is not defamatory, the court will not examine the article to provide a contextual basis for the headline.

Further, certain more subtle methods of communication, like the use of punctuation marks, may be examined in determining a reasonable interpretation of a statement. For example:

The following appears in the sports page of a popular newspaper: “Ricky Henderson, a popular baseball player, is escorted on all road trips by an entourage of paid employees including a group of four or five women who Mr. Henderson ‘employs’ at the beginning of each season”. In such a situation, Henderson may have a viable cause of action against the newspaper. By virtue of the way that the article describes Henderson’s entourage and particularly by the use of quotes around the word employs, a reasonable reader could interpret this statement to have defamatory meanings.

Defamatory statements can come in the form of questions as well, especially if the question implies certain facts about the person who is being questioned. For example:

A radio DJ, during an interview, asks his guest “when did you stop beating your wife”? This question carries the implication that the guest has been beating his wife. Thus, there is a defamatory implication to the question and the guest may have a viable cause of action against the radio DJ.

In addition, defamation can arise from seemingly innocent statements if those innocent statements can be combined with certain facts. For example:

A newspaper reports that Prince and his wife have given birth to a baby. What the newspaper does not report is that Prince and his wife have been married for four months. Thus, while the statement itself is not defamatory, it becomes so when tied to the fact that Prince and his wife have only been married for four months.

Further, for a statement to be actionable, a third person must reasonably be able to interpret that statement as referring to the plaintiff. Thus, even when the plaintiff is unnamed in the defamatory statement, there may be a cause of action if a third person can make a reasonable assumption that the statement is referring to the plaintiff. For example:

A prominent Hollywood actor gives an interview in which he disparages a certain unnamed director. If it is known that the actor has only worked with one director in his career, the actor can be held liable because third persons can make a reasonable assumption that the defamatory statements were referring to that particular director.

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