Defamation

Defamation is the area of the law that allows an injured party to seek redress for injury to their person or property for a statement that injures a third party’s reputation. The statement can be written (libel) or spoken (slander). In all cases, truth is an absolute defense to an allegation of defamation.

For the average person to successfully litigate a claim of defamation, the Plaintiff must prove three elements:

1. Defendant published a false statement about Plaintiff.
2. The statement was published to a third party.
3. The falsity of the statement caused injury to Plaintiff.

When litigating a claim for defamation, the law imposes a higher standard when the allegedly injured party is a public figure. The rationale behind this is that public figures voluntarily subject themselves to an increased level of comment and criticism. As such, when Plaintiff is a public figure or limited public figure, the following elements must be established:

1. Publication
2. The falsity of the statement
3. Knowledge of, or reckless disregard for, the falsity of the statement (This element is often referred to as the “actual malice” element of defamation.)
4. Actual damages

To prove actual malice, Plaintiff must introduce evidence “sufficient to give rise to a reasonable inference that the allegedly false statement was made with knowledge that it was false or with reckless disregard of whether it was false.” Michel v. NYP Holdings, Inc., 816 F.3d 686, 702-04 (11th Cir. 2016).

When a defamation claim alleges “reckless” conduct, courts do not use a “reasonable person” standard when evaluating the conduct. Instead, Plaintiff must introduce “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968).

A common defense to allegations of defamation involving a public figure is the qualified “fair comment” privilege. When applicable, the fair comment privilege allows an interested person to make a “fair comment” on a public matter relating to an individual who has voluntarily made himself newsworthy.

Finally, because defamation requires Plaintiff to prove that Defendant published a false statement of fact, statements of opinion are not actionable as defamation.

When a false statement is so inflammatory on its face that damages are presumed to exist (and therefore need not be proven), it is referred to as “defamation per se.” A false statement is considered defamation per se if any of the following apply:

• The statement charges that a person has committed an infamous crime.
• The statement charges a person with having an infectious disease.
• The statement tends to subject one to hatred, distrust, ridicule, contempt, or disgrace.
• The statement tends to injure one in his trade or profession.