Defamation is basically a statement that is untrue, which harms another person. Defamation comes in two forms — libel and slander.
A libel is a defamatory statement that is said to be in permanent form, such as a writing, something typed up, set forth in an email or fax, or a newspaper article, magazine article, blog or other “fixed representation.” For a libel to be actionable, it must be (1) untrue, (2) communicated to a third person, and (3) exposes a person “to hatred, contempt, ridicule, or obloquy or that causes him or her to be shunned or avoided or which has a tendency to injure him in his occupation.” Civ. Code §45.
Since defamation is basically an injury to one’s reputation, the libelous statement must be communicated to a third person. If, for instance, a defendant sends an email containing an otherwise libelous statement to the plaintiff, and does not communicate it to anyone else, there is no injury to the plaintiff, because the libelous statement has not tarnished the plaintiff’s reputation. However, a libelous statement need not be communicated to multiple individuals or to the public generally; it is sufficient if it is communicated to a single individual other than the plaintiff.
- Libel Per Se. The untrue statement may be libelous on its face, known as libel per se, if it is defamatory of the plaintiff without the need for any explanation. An untrue statement is libelous per se if, of necessity, it damages the plaintiff’s reputation as described above.
- General Damages. A plaintiff may recover general damages if he shows that the defamatory statement is a libel per se. The plaintiff’s general damages are those damages which naturally occur from the libel, typically a non-economic injury, such as an injury to the plaintiff’s reputation. In such a case, the plaintiff does not need to prove any particular dollar amount of damages.
- Special Damages. If the untrue statement is not harmful to the plaintiff’s reputation on its face, the plaintiff must plead and prove that he or she suffered special damages as a result of the libelous statement. Special damages are those which do not naturally flow from the libelous statement, but are such that the defendant has reason to know will likely result from the statement. They are typically economic losses, such as lost income or expenses the plaintiff incurred as a result of the defamatory statement.
- Colloquium. In some cases, an untrue, harmful statement does not specifically identify the person against whom it is aimed. In such a case, the plaintiff must show that one or more third parties understood the untrue harmful statement to refer to him. The requirement that the plaintiff make such a showing is known as “colloquium.” However, when the statement refers to a large group of people, of which the plaintiff is one, that fact will not provide the plaintiff with a claim of libel against the individual who published the statement. That is because it is not clear that the statement was intended to refer to that particular individual, as opposed to the group in general.
- Innuendo. Colloquium is used to show that an untrue harmful statement applies to an individual who is not specifically identified. Innuendo is similar, in that it is used to show that a statement which is not obviously harmful on its face, has a defamatory meaning. The plaintiff has the burden of proving that one or more third parties understood the statement in a defamatory manner. Of course, if the words on their face under no circumstances could convey a defamatory meaning, they cannot be made defamatory by innuendo. The concept of innuendo is applicable only when the words used can either have a non-harmful or a non-harmful meaning.
- Inducement. Inducement is a concept that is applied when a statement on its face does not reflect an injurious meaning with respect to the plaintiff. Inducement is an explanation of context and circumstances which reflects a defamatory meaning to the statements made.
- Falsity. A statement is not libelous unless it is false. At common-law, falsity is not an essential element of the plaintiff’s claim. The plaintiff’s burden typically is to show that the statement made refers to him and is harmful to him. He need not prove that the statement is false. If the statement is injurious to the plaintiff’s reputation, it is presumed to be false, and typically the burden is on the defendant to prove that the statement is true. However, based on constitutional principles, such as freedom of speech and freedom of the press, the burden is on the plaintiff to prove falsity of the statement if the plaintiff is a public official or a public figure, or the plaintiff is suing a newspaper or other media defendant when making a statement that is of public interest and concern.
- Opinion. There is no clear rule for determining whether a statement of opinion is an actionable libel. To the extent a statement is clearly an opinion, and not a statement of fact, typically it will not be actionable. The primary issue is whether or not the statement is susceptible of being proven true or false. If it clearly cannot be proven true or false, it will typically be viewed as mere opinion and, therefore, not actionable. In one case, a defendant’s statement that the plaintiff had a conflict of interest was ruled to not be defamatory as a matter of law, because the statement did not imply an objective fact that could be true or false.
However, a defendant who expresses what might be considered an opinion, but states or implies that it is based on facts which are not disclosed in connection with the statement, the statement may be viewed as a statement of fact and, therefore, an actionable libel. However, if the defendant’s statement is in the nature of an opinion, and the statement discloses all of the facts on which the opinion is based, and those facts are true, the statement will be considered a non-actionable opinion.
- Slander. Defamation consists of libel and slander. Libel is an untrue statement injurious to another which is in permanent form such as in a written publication. Slander is an untrue statement injurious to another which is in an impermanent or transitory form, such as an oral statement. It includes oral statements made by one person to another or others, and communications by radio or other mechanical means.
To be slanderous, the statement must one that “(1) charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) imputes in him the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his or her office, profession, trade, or business that has a natural tendency to lessen his profits; (4) imputes to him impotence or a want of chastity; or (5) that, by natural consequence, causes actual damage.” Civ. Code §46.
- Slander Per Se. Unlike libel, oral statements can be slanderous per se though they do not appear to be defamatory on their face, and even though their defamatory meaning must be proven by way of innuendo and inducement. Moreover, there is no need to plead and prove special damages in a case of slander. General damages are presumed. Of course, a plaintiff asserting a claim of slander may also plead and prove special damages.
- Constitutional Considerations. Because libel and slander involve speech, and the press is often involved in publishing statements considered libelous, the requirements for proving an actionable libel or slander are more rigorous when public officials or public figures or issues of public importance are involved. For instance, a public official may not recover damages for an untrue, harmful statement, unless he or she can prove “actual malice,” that is, that the defendant knew that the statement was false or acted with reckless disregard of whether it was true or false.
The types of publications that are covered include books, magazines, papers, radio, television — all forms of media. However, the Ninth Circuit Court of Appeals has also ruled that the constitutional privilege of freedom of speech and of the press applies not just to typical media entities, but to individuals as well. As an example, when an internet blogger speaks on a matter of public concern, his statements are covered by the freedom of speech privilege.
Public figures, like public officials, must similarly prove that the defendant acted with “actual malice” in order to recover on a claim of libel or slander. A public figure is one who has thrust himself into the public forum, and assumes a special prominence in the resolution of public questions by voluntarily and actively seeking attention in connection with a matter of public interest. Public figures also include those who are well known to the public, such as Hollywood celebrities and professional athletes. Public figures, like public officials, must prove “actual malice” in order to recover for libel or slander.
Private plaintiffs are not typically subject to the requirement of proving “actual malice” when suing a defendant for libel or slander. However, private plaintiffs are subject to that requirement when the allegedly defamatory statement relates to a matter of public concern.
- Compensatory Damages. In addition to general damages and special damages, the jury may award nominal damages, whether it be one dollar or any other nominal amount, if the jury believes the no actual damages have been sustained by the plaintiff.
- Punitive damages. A plaintiff may recover punitive damages, only he or she can show that the defendant acted with “malice in fact,” that is, with a motive and willingness to vex, harass, annoy or injure the plaintiff. A jury may infer malice from the tenor of a defamatory statement that is libelous per se, but may not do so simply based on a defendant’s failure to prove that the statement was true, or that the defendant was privileged to make the defamatory statement.
The Law Office of William J. Tucker is familiar with tort principles, including libel and slander, and provides free initial phone consultations to individuals and companies who have issues, concerns or questions about these subjects. Feel free to Schedule an Appointment.