Defamation

Defamation is the communication of a statement that makes a false claim, expressly stated or implied to be factual, that may harm the reputation of an individual, business, product, group, government or nation. Most jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation and retaliate against criticism.

The common law origins of defamation lie in the torts of slander (harmful statement in a transitory form, especially speech) and libel (harmful statement in a fixed medium, especially writing but also a picture, sign, or electronic broadcast), each of which gives a common law right of action.

"Defamation" is the general term used internationally, and is used in this article where it is not necessary to distinguish between "slander" and "libel". Libel and slander both require publication. The fundamental distinction between libel and slander lies solely in the form in which the defamatory matter is published. If the offending material is published in some fleeting form, as by spoken words or sounds, sign language, gestures and the like, then this is slander. If it is published in more durable form, for example in written words, film, compact disc (CD), DVD, blogging and the like, then it is considered libel.

Development of U.S. Defamation Laws

Laws regulating slander and libel in the United States began to develop even before the American Revolution. In one of the most famous cases, New York publisher John Peter Zenger was imprisoned for 8 months in 1734 for printing attacks on the governor of the colony. Zenger won his case and was acquitted by jury in 1735 under the counsel of Andrew Hamilton. The case established some precedent that the truth should be an absolute defense against libel charges. Previous English defamation law had not provided this guarantee. Gouverneur Morris, a major contributor in the framing of the U.S. Constitution said, "The trial of Zenger in 1735 was the germ of American freedom, the morning star of that liberty which subsequently revolutionized America."

Zenger's case also established that libel cases, though they were civil rather than criminal cases, could be heard by a jury, which would have the authority to rule on the allegations and to set the amount of monetary damages awarded.

The First Amendment of the U.S. Constitution was designed specifically to protect freedom of the press. However, for most of the history of the United States, the Supreme Court neglected to use it to rule on libel cases. This left libel laws, based upon the traditional common law of defamation inherited from the English legal system, mixed across the states.

In 1964, however, the court issued an opinion in New York Times Co. v. Sullivan, dramatically changing the nature of libel law in the United States. In that case, the court determined that public officials could only win a suit for libel if they could demonstrate "actual malice" on the part of reporters or publishers. In that case, "actual malice" was defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." This decision was later extended to cover "public figures", although the standard is still considerably lower in the case of private individuals.

In 1974, in Gertz v. Robert Welch, Inc., (418 U.S. 323), the Supreme Court suggested that a plaintiff could not win a defamation suit when the statements in question were expressions of opinion rather than fact. In the words of the court, "under the First Amendment, there is no such thing as a false idea". However, the Court subsequently rejected the notion of a First Amendment opinion privilege, in Lorain Journal Co. v. Milkovich. In Gertz, the Supreme Court also established a mens rea or culpability requirement for defamation; states cannot impose strict liability because that would run afoul of the First Amendment. This holding differs significantly from most other common law jurisdictions, which still have strict liability for defamation.

In 1988, in Hustler Magazine v. Falwell, (485 U.S. 46), the Supreme Court ruled that a parody advertisement claiming Jerry Falwell had engaged in an incestuous act with his mother in an outhouse, while false, could not allow Falwell to win damages for emotional distress because the statement was so obviously ridiculous that it was clearly not true; an allegation believed by nobody, it was ruled, brought no liability upon the author. The court thus overturned a lower court's upholding of an award where the jury had decided against the claim of libel but had awarded damages for emotional distress.

After Stratton Oakmont v Prodigy, 1995 N.Y. Misc. Lexis 229 (N.Y. Sup. Ct. May 24, 1995), applied the standard publisher/distributor test to find an online bulletin board liable for post by a third party, Congress specifically enacted 47 U.S.C. § 230 (1996) to reverse the Prodigy findings and to provide for private blocking and screening of offensive material. §230(c) states “that no provider or user of an interactive computer shall be treated as a publisher or speaker of any information provided by another information content provider,” thereby providing forums immunity for statements provided by third parties. Thereafter, cases such as Zeran v America Online, 129 F.3d 327 (4th Cir. 1997), and Blumenthal v Drudge, 992 F. Supp. 44 (D.D.C. 1998), have demonstrated that although courts are expressly uneasy with applying §230, they are bound to find providers like AOL immune from defamatory postings. This immunity applies even if the providers are notified of defamatory material and neglect to remove it, due to the fact that provider liability upon notice would likely cause a flood of complaints to providers, would be a large burden on providers, and would have a chilling effect on freedom of speech on the Internet.

In November of 2006 the California Supreme Court ruled that 47 USC § 230(c)(1) does not permit web sites to be sued for libel that was written by other parties.

Defamation Law in Modern Practice

Defamation law in the United States is much less plaintiff-friendly than its counterparts in European and the Commonwealth countries, due to the enforcement of the First Amendment. One very important distinction today is that European and Commonwealth jurisdictions adhere to a theory that every publication of a defamation gives rise to a separate claim, so that a defamation on the Internet could be sued on in any country in which it was read, while American law only allows one claim for the primary publication.

In the United States, a comprehensive discussion of what is and is not libel or slander is difficult, because the definition differs between different states, and under federal law. Some states codify what constitutes slander and libel together into the same set of laws. Some states have criminal libel laws on the books, though these are old laws which are very infrequently prosecuted.

Most defendants in defamation lawsuits are newspapers or publishers, which are involved in about twice as many lawsuits as are television stations. Most plaintiffs are corporations, businesspeople, entertainers and other public figures, and people involved in criminal cases, usually defendants or convicts but sometimes victims as well. Almost all states do not allow defamation lawsuits to be filed if the allegedly defamed person is deceased. No state allows the plaintiff to be a group of people.

In the various states, whether by case law or legislation, there are generally several "privileges" that can get a defamation case dismissed without proceeding to trial. These include the allegedly defamatory statement being one of opinion rather than fact; or being "fair comment and criticism", as it is important to society that everyone be able to comment on matters of public interest. The Supreme Court, however, has rejected the opinion privilege outright and has declined to hold that the "fair comment" privilege is a Constitutional imperative.

Defamation Per Se

All states except Arizona, Arkansas, Mississippi, Missouri, and Tennessee recognize that some categories of statements are considered to be defamatory per se, such that people making a defamation claim for these statements do not need to prove that the statement was defamatory. In the common law tradition, damages for such statements are presumed and do not have to be proven. Traditionally, these per se defamatory statements include:

1. Allegations or imputations "injurious to another in their trade, business, or profession;"
2. Allegations or imputations "of loathsome disease" (historically leprosy and sexually transmitted disease, now also including mental illness);
3. Allegations or imputations of "unchastity" (usually only in unmarried people and sometimes only in women); and
4. Allegations or imputations of criminal activity (sometimes only crimes of moral turpitude)