The Law of Defamation
Not Who You Think, Simpson
I. WHAT IS DEFAMATION?
Libel or Slander: Libel is written, slander is oral.
Historically, defamation consisted of slander and libel. Slander
is defamation by speaking, and libel is defamation by means of
writing. After the invention of the printing press, the
permanence of the written word meant that libel caused far more
damage than slander. Slander, however, had a big impact in
pre-literate communities where the spoken word was the primary
way information was exchanged.
In modern times, the legal distinction between libel and slander
has been narrowed. Most modern defamation cases involve libel,
and modern writers have come to use the term "defamation" to
describe both libel and slander.
Defamation consists of the following:
(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was
false.
Each of these element has generated controversy. We shall
examine them in turn:
A. A Defamatory Communication
What is a "defamatory" statement?
1. A statement which causes harm to reputation.
A statement is defamatory if it "tends to injure the plaintiff's
reputation and expose the plaintiff to public hatred, contempt,
ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408
N.W.2d 569, 573 (Minn. 1987). When the defamatory meaning is not
apparent on its face, the plaintiff has the burden of pleading
and proving such extrinsic facts. Anderson v. Kammeier, 262
N.W.2d 366, 371 (Minn. 1977).
2. Defamation Per se
Some statements are so defamatory that they are considered
defamation per se; and the plaintiff does not have to prove that
the statements harmed his reputation. The classic examples of
defamation per se are allegations of serious sexual misconduct;
allegations of serious criminal misbehavior; or allegations that
a person is afflicted with a loathsome disease. The historical
examples of loathsome diseases are leprosy and venereal
diseases. Allegations that a person is afflicted with AIDS may
well constitute a modern variation on this form of defamation
per se.
When a plaintiff is able to prove defamation per se, damages are
presumed, but the presumption is rebuttable.
3. What Constitutes Injury to Reputation?
The plaintiff must establish proof of damage to reputation in
order to recover any damages for mental anguish; see Gobin v.
Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982);
Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705,
707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a
defamation action [plaintiff] must prove that the [defendant]
made false and defamatory statements about them which injured
their reputation.").
Evidence of plaintiff's poor reputation is generally admissible
to mitigate damages. Davis v. Hamilton, 92 N.W. 512, 515 (Minn.
1902); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512,
517 (Tex. App. 1987). If an individual's reputation cannot be
further damaged, a defamation suit serves no purpose, wastes
judicial resources, and hinders First Amendment interests. Id.
The "libel-proof" plaintiff. A plaintiff is "libel-proof" when
his reputation has been irreparably stained by prior
publications. At the point the challenged statements are
published, then, plaintiff's reputation is already so damaged
that a plaintiff cannot recover more than nominal damages for
subsequent defamatory statements. Marcone v. Penthouse Int'l
Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).
However, a court will not dismiss a defamation action merely
because the plaintiff already has a bad reputation. Schiavone
Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J.
1986), rev'd, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea,
742 S.W.2d at 516 ("[E]ven the public outcast's remaining good
reputation is entitled to protection.") Rather the statement
upon which the defamation claim is based should relate to the
same matters upon which the prior bad reputation was founded, or
to substantially similar matters.
In extreme cases, a plaintiff's general reputation may be so bad
that a court will hold a plaintiff libel-proof on all matters.
For example, Charles Manson or Adolph Hitler could not be
damaged by defamatory statements. Langston v. Eagle Publishing
Co., 719 S.W.2d 612, 623 (Tex. App. 1986).
B. The Statement was published to third persons
Defamatory statements must be communicated to a third party. You
cannot defame someone by speaking to them alone, or by muttering
to yourself. This element of defamation is virtually always
satisfied when claims are made against newspapers and broadcast
media.
C. The defendant knew or should have known that the
communication was false
Defamation allows recovery for unfair damage to reputation. As a
consequence, if true statements are made about a person which
damage their reputation, they cannot maintain a lawsuit.
This is a relatively recent development. One origin of libel and
slander laws was a criminal cause of action by the English Crown
used to silence its critics; hence, it was the truth of the
alleged libel which provoked the lawsuit. However, as the right
of free speech developed and gained support, the use of
defamation to suppress true statements was rejected. Virtually
all states today apparently require that the alleged defamatory
statement be false before a defamation action may proceed.
For example, the Minnesota Supreme Court has held:
We hold that a private individual may recover actual damages for
a defamatory publication upon proof that the defendant knew or
in the exercise of reasonable care should have known that the
defamatory statement was false. The conduct of defamation
defendants will be judged on whether the conduct was that of a
reasonable person under the circumstances.
Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491
(Minn. 1985). Other cases follow this reasoning. See LeDoux v.
Northwest Publications, Inc., 521 N.W.2d 59, 67 (Minn. App.
1994) ("In order for a statement to be defamatory . . . it must
be false."); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th
Cir. 1985), cert. den., 479 U.S. 883 (1987) ("Libel, by
definition, consists of publication of a false and unprivileged
fact.").
However, the U.S. Supreme Court has expressly reserved the
question of whether the U.S. Constitution requires purely
private defamation plaintiffs to prove falsity in all cases. See
Philadelphia Newspapers, Inc. v. Hepps, 476 U.S. 767, 779 n.4
(1986). In other words, there may be no constitutional barrier
if a particular state wishes to allow defamation actions even
for true statements.
How false is false? The test is whether the alleged defamatory
statement as a whole is true or false. Minor inaccuracies are
not subject to defamation claims if the overall substance of the
statement is true. "The plaintiff cannot succeed in meeting the
burden of proving falsity by showing that only that the
statement is not literally true in every detail. If the
statement is true in substance, inaccuracies of expression or
detail are immaterial." Jadwin, supra, 390 N.W.2d at 441.
No Defamation by Implication. Failure to report all the facts
may lead to a defamatory conclusion by the reader. But unless
the overall substance of the statement can be proven false, no
defamation claim will arise. "[T]he cause of action known as
defamation by implication . . . is not recognized in Minnesota."
Kortz v. Midwest Communications, Inc., 20 Media Law Rep. (BNA)
1860, 1865 (Ramsey County Dist. Ct. 1992). A public official may
not maintain a defamation by implication claim. Diesen v.
Hessberg, 455 N.W.2d 446, 451 (Minn. 1990).
D. Negligence Is Standard Of Liability
In Minnesota, the defendant is liable if it "knew or should have
known in the exercise of reasonable care" that the defamatory
statement was false. Jadwin, supra. This is the standard
formulation for liability based on negligence, that is,
liability arising from failure to take due care.
This is a low standard of liability. However, First Amendment
considerations substantially limit the application of this
standard.
II. Defenses to Defamation
A. Truth
Truth is a complete defense to a defamation claim. This is
simply the flip side of the requirement that plaintiff prove the
falsity of the alleged defamatory statement.
B. The First Amendment
1. Public Officials/Public Figures: Actual Malice must be
proven.
The First Amendment requires that a defamation plaintiff prove
actual malice or reckless disregard of the truth when the
plaintiff is a public official or public figure. New York Times
v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden
of proof for a public figure plaintiff. Instead of showing
objectively that a "reasonable person" knew or should have known
the defamatory statement was false, a public figure plaintiff
must prove the intent of the defendant was malicious, or that
they acted with reckless disregard for the truth. This allows
the defendant to prove its good faith intent and efforts as a
defense.
2. Matter of Public Concern: Actual Malice must be proven.
In cases where the media defendant is treating an issue of
public concern, the First Amendment also requires proof of
actual malice or reckless disregard of the truth, even if the
plaintiff is not a public figure. Gertz v. Robert Welch, 418
U.S. 323, 349-50 (1974). See also Hepps, 475 U.S. at 775 (In
non-public concern, non-public plaintiff defamation case, First
Amendment does not bar application of mere negligence standard
for defamation); Dun & Bradstreet v. Greenmoss Builders, Inc.,
472 U.S. 749, 761 (1985) (Powell, J., concurring).
3. Matter of Public Concern: Plaintiff Must Prove Statement is
False.
Proof of falsity required when media defendant addresses topic
of public concern; regardless of public/private status of
plaintiff. Hepps, 475 U.S. at 775-76.
4. Actual Malice must be Shown by "Convincing Clarity."
Where the plaintiff is a public official, he must prove actual
malice or reckless disregard of the truth with "clear and
convincing proof". New York Times v. Sullivan, 376 U.S. 254, 286
(1964); Gertz, 418 U.S. at 342; Hepps, 475 U.S. at 773.
5. Falsity May Have to Shown by "Convincing Clarity."
Public figure plaintiffs may have to prove falsity by "clear and
convincing evidence" as protected under New York Times v.
Sullivan. Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y.
1984); Firestone v. Time Inc., 460 F.2d 712, 722 (5th Cir.
1972), cert. den., 409 U.S. 875 (Bell, J., specially
concurring).
6. Who is a Public Official or Public Figure?
Public Official. Governmental policy-makers are public
officials, while public employees generally are not public
officials. The Minnesota Supreme Court has laid out a test to
determine who is, and is not, a public official:
(1) whether plaintiff performs governmental duties directly
related to the public interest; (2) whether plaintiff holds a
position to influence significantly the resolution of public
issues; and (3) whether the plaintiff has, or appears to the
public to have, substantial responsibility for or control over
the conduct of government affairs.
Britton v. Koep, 470 N.W.2d 518, 522 (Minn. 1991). In Britton,
the Minnesota Supreme Court held that a public roads department
supervisor was not a public official, and did not have to prove
actual malice.
Public Figure. A "public figure" is a person who is publicly
prominent, so much so that discussion or commentary about that
person amounts to a "public concern." However, such persons are
not necessarily public figures for any purpose: status as a
public figure may only extend to the particular area in which
they are publicly prominent. Examples: Dennis Green, or Donald
Trump. The extent of a person's status as a public figure will
be subject to extensive litigation in each case.
The U.S. Supreme has established some guidelines on who
constitutes a public figure:
(1) Involuntary Public Figure: become public figure through no
purposeful action of their own, including those who have become
especially prominent in the affairs of society; (2) Always
Public Figures: those who occupy position of such persuasive
power and influence that they are deemed public figures for all
purposes; (3) Public Figures on Specific Issues: "those who have
thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues
involved."
Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
7. Right to Petition for Grievance Creates Privilege against
Defamation
Statements made to the government and its representatives, in
the course of petitioning the government for redress of
grievances, are absolutely protected from defamation claims
under the Noerr-Pennington doctrine. See Eastern Railroad
Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127
(1961) and United Mine Workers of America v. Pennington, 381
U.S. 657 (1965). "[T]his deference to the right to petition
[applies] not only in antitrust cases but in other cases
involving civil liability." Gorman Towers, Inc., v. Bogoslavsky,
626 F.2d 607, 614-15 (8th Cir. 1980).
C. Qualified Privileges.
A defamatory statement is protected by a qualified privilege if
"made upon a proper occasion, from a proper motive, and . . .
based upon reasonable or probable cause." Brooks v. Doherty,
Rumble & Butler, 481 N.W.2d 120, 124-25 (Minn. App. 1992)
(citing Stuempges v. Park, Davis & Co., 297 N.W.2d 252, 257
(Minn. 1980). Examples: an employer's response to unemployment
claims, workers' compensation claims, or a response to a request
for verification of employment.
The question of whether qualified privilege applies is a
question of law decided by the court. Keenan v. Computer Assoc.
Int'l, Inc., 13 F.3d 1266, 1270 (8th Cir. 1994); the factual
basis for any "reasonable and proper grounds" for the statement
is a jury question. Id.
The plaintiff may typically only overcome a qualified privilege
by showing actual malice. It is the plaintiff's burden to show
that the defendant did not have "reasonable and proper grounds"
for the allegedly defamatory statement.
D. Opinion Defense.
The First Amendment protects statements of opinion, as distinct
from statements of fact, against claims of defamation. However,
the test is not the author's mere characterization of the
statement as "opinion." Milkovich v. Lorain Journal Co., 497
U.S. 1 (1990). A statement is an opinion when:
(1) the statement addresses matters of public concern; (2) the
statement expressed in a manner that is not provably true or
false; and (3) the statement cannot be reasonably interpreted as
intended to convey actual facts about a person.
Id. at 17.
In addition, the U.S. Supreme Court articulated some standards
to assist in determining whether a statement is intended to
convey an actual fact about a person, or not:
(1) is the language loose, figurative, or hyperbolic, which
would negate the impression that the speaker was seriously
maintaining the truth of the underlying facts? (2) Does the
general tenor of the article negate the impression that the
speaker was seriously maintaining the truth of the underlying
fact? and (3) is the connotation sufficiently factual to be
susceptible of being proved true or false.
Id. at 21.
Milkovich cut back on First Amendment protection for opinions as
a matter of federal law. But federal law only sets a
constitutional floor below which state law cannot go. Nothing
prevents states from providing more protection to opinions than
the First Amendment requires.
Minnesota courts apply the four-factor test used by the U.S.
Court of Appeals in Janklow v. Newsweek, Inc., 759 F.2d 644, 648
(8th Cir. 1985), cert. den., 479 U.S. 883 (1987) to determine
whether statements are opinion or not (Janklow was decided prior
to Milkovich). Hunt v. Univ. of Minnesota, 465 N.W.2d 88, 94
(Minn. App. 1991). Janklow involved a suit by the sitting
Governor of South Dakota against Newsweek magazine, for
repeating allegations regarding his possible sexual relations
with a 14-year old Indian girl while he was a lawyer on a
reservation. Newsweek successfully defended the claim on the
grounds that the alleged defamatory statement had been expressed
as the opinion of the author. The Janklow test to determine if a
statement is an opinion is as follows:
(1) How precise and specific is the statement? (2) Is the
statement verifiable? (3) What is the literary and social
context of the statement? (4) What is the public context of the
statement?
If a statement is determined to be an opinion, then it cannot be
the subject of a defamation suit. The reason is that opinions
are not capable of being proven true or false, and the plaintiff
cannot therefore prove one of the elements of a defamation
claim. "[S]tatements regarding matters of public concern which
are not sufficiently factual to be capable of being proven true
or false, and statements which cannot be reasonably interpreted
as stating actual facts are absolutely protected." Hunt, supra,
465 N.W.2d at 94.
E. Consent as a Defense.
"[T]he consent of another to the publication of defamatory
matter concerning him is a complete defense to his actions for
defamation." RESTATEMENT (SECOND) OF TORTS § 583. See also
LaBaron v. Board of Public Defense, 499 N.W.2d 39, 42 (Minn.
App. 1993).
While consent is an absolute defense to defamation, it arises
rarely in practice.
F. Legal Obligation to Publish is an Absolute Defense to
Defamation.
If a defendant was legally required to publish the allegedly
defamatory statement, they cannot be held liable for defamation.
See LaBaron, 499 N.W.2d at 42. Responses to court subpoenas,
formal requests for information from government agencies, and
the like fall into this category.
G. Privileges Created by Statute may bar Defamation Claims.
Statements made pursuant to privileges created by state or
federal statute are protected by a qualified privilege. For
examples, Minnesota statute § 181.933 requires an employer to
provide the reasons for discharge to an employee who has been
fired, within five working days after a written request. See
also the Minnesota Anti-SLAPP statute, Minn. Stat. § 554.01 et
seq., which creates a privilege in statements made in the course
of public participation in governmental affairs.
III. Practical Methods of Reducing Liability for Defamation
A. Due Diligence
1. Investigate the Facts.
Even basic investigations can go a long way towards reducing
defamation liability. Publishing material as "fact" without
doing any investigation by itself might amount to reckless
disregard for the truth. To avoid liability, you don't have to
establish the truth of the statement for all time; rather, you
should do enough to satisfy yourself that the facts alleged are
probably true in your reasonable judgment.
2. Establish Neutral Criteria for Publication.
How do you decide when to publish a story? Establish some
guidelines for publication, before you're faced with a
controversial situation. Again, the absence of any guidelines
for publication might be used as evidence of "reckless disregard
for the truth."
The guidelines you use must be reasonable and should reflect the
appropriate professional standards of journalism.
3. Follow the Criteria You Establish.
Failure to follow the criteria you establish might be viewed as
recklessness. If you do depart from your guidelines, make sure
you have a good reason to do so.
4. Don't Use Unreliable Sources.
Use common sense. Be aware when people have obvious axes to
grind. If an unreliable or uncertain source presents you with a
good story, take special care to verify or corroborate the story
before publication.
5. Retain Records of Your Investigation.
In order to defeat a claim of recklessness, it is extremely
helpful to document the facts and procedures of the
investigation. The main way of doing that is to preserve the
notes, records, and other material related to an investigation.
Establish a general policy of records retention. Keep the
records until the statute of limitations on defamation runs out.
In Minnesota this is two years from the date of publication.
Minn. Stat. § 541.07.
B. Confirm the Identity of the Subject of Your Article.
Many defamation problems may be headed off by calling the
subject of the article for confirmation or denial. If the
subject chooses to talk to you, you will get their side of the
story. Getting this information may cause you to modify the
article you are about to run. Certainly you can claim a good
faith effort to determine the truth if you contact the subject.
If the subject refuses to speak with you, at the very minimum
you've made a good faith effort.
Attempting to contact the subject helps avoid any identification
problems about the subject. Many names are quite common, and
contacting the subject will confirm that you're dealing with the
right person. At a minimum, you might try to get the subject to
confirm the exact spelling of their name, which also acts as a
check on identity.
Be skeptical of public records. Many public records also reflect
the confusion of common names, and the only real guarantee of
accuracy in public records is the skill of the typist who
entered the data in the computer.
C. Use Quoted Material Whenever Possible.
Often more controversial material should be presented in the
form of a quotation. The person being quoted takes the risk of a
defamation claim. You should not use a quote if you believe that
that quote is false, and you can't knowingly or recklessly print
false information simply by putting the words in someone's
mouth.
Cite the person giving you the quotation. Often the identity of
a person making a statement is more newsworthy than the quote
itself.
D. Avoid Conclusory Language.
Report facts, not conclusions. If there is any conclusions to be
drawn from the facts, the reader will draw them. For example,
suppose a public official has committed several acts which tend
to show that they might be dishonest. DO NOT REPORT that the
public official is "dishonest" without qualification. Even
though that might be a reasonable conclusion based on the facts,
it is not a fact itself.
Do not take sides in evaluating disputed facts. You can compare
and contrast differing versions of events with each other in a
news story, but do not state unequivocally that one side or the
other is lying, or that one side or the other is factually
incorrect. That is an opinion, and should be qualified as such.
As an opinion, it should not appear in a news story where a
reader may confuse it with a factual report.
Instead of "Mrs. Smith is lying because the videotape at the
scene shows the officer was courteous" you might say: "Mrs.
Smith's account is contradicted by the videotape from the
officer's car. The videotape appears to show that the officer
acted courteously. Mrs. Smith denied assaulting the officer even
after she was confronted with the videotape and hospital records
showing medical treatment of slap marks on the officer's right
cheek."
E. Counteract Any Bias
Be aware of the newspaper's political opponents. In dealing with
news about such persons, take special care to demonstrate good
faith regard for the truth of the statements you print. Often
actual malice can be proven by showing one side has a grudge
against the other.