Defamation

Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can -- and often do -- vary from state to state. Accordingly, you should consult your state's law in the State Law: Defamation section of this guide for specific information.

Generally speaking, a person who brings a defamation lawsuit must prove the following:

  1. The defendant published the statement. In other words, that the defendant uttered or distributed it to at least one person other than the plaintiff. You don’t need to be a media mogul to be a publisher. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If you publish something on the Internet, you can assume that this requirement has been met.

  2. The statement is about the plaintiff. The statement need not name the person explicitly if there is enough identifying information that those who know the person will recognize the statement as being about him or her. For more information, see the section on Who Can Sue For Defamation.

  3. The statement harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade. For more information, see the section on What is a Defamatory Statement.

  4. The statement was published with some level of fault. Fault requires that the defendant did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official. The level of fault that must be proven is discussed in the Actual Malice and Negligence section of the legal guide.

  5. The statement was published without any applicable privilege. A number of privileges may be available depending on what the defendant published and the source(s) he relied on for the information. For more information, see the section on Defamation Privileges and Defenses in this guide.

In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false. In cases involving matters of purely private concern, in many states the burden of proving truth is on the defendant. This is not to say that every detail you publish must be perfectly accurate to avoid liability. If you get a few minor details wrong, this will not necessarily negate the truth of what you say so long as the statement at issue is substantially true. See the section on Substantial Truth for more information.

Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion). 

Keep in mind that the republication of someone else's defamatory statement can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).

On the other hand, if you repeat what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect you provided you attribute the information you gathered and are accurate in your reporting. See the section on Defamation Privileges and Defenses for information on this, and other, privileges.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Damages for Defamation

In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize "per se" defamation, where damage is presumed if the defamatory statement relates to one of the following subjects:

  • Impugns a person's professional character or standing;
  • States or implies that an unmarried person is unchaste (e.g., is sexually active);
  • States or implies that a person is infected with a sexually transmitted disease; or
  • States or implies that the person has committed a crime of moral turpitude (e.g., theft or fraud).

See the State Law: Defamation section of this guide for specific information on what each state recognizes. 

If a plaintiff succeeds in proving defamation, he or she is entitled to recover what is called compensatory damage, which is the payment of money to compensate the plaintiff for the wrong that has been done. This includes not only out-of-pocket expenses (e.g., doctor's bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant.

Note that some states require that a plaintiff must first ask the defendant to correct or remove the defamatory statement in order to be entitled to certain types of damages. See the section on Correcting or Retracting Your Work After Publication for more information.

Parallel Legal Claims Based on Allegedly False Statements

It is common for defamation plaintiffs to assert not only a claim for defamation, but also claims for infliction of emotional distress, interference with business relationships, etc., arising out of the same allegedly false statements. These parallel claims will ordinarily be subject to the same limitations, privileges and defenses as the main defamation claim. For more information, see our section on Other Falsity-Based Legal Claims.

Other Falsity-Based Legal Claims

As discussed elsewhere in this guide, there are substantial privileges and defenses available to defendants in defamation actions. The First Amendment and related state law doctrines that protect speech often present insurmountable obstacles for defamation plaintiffs. In response, plaintiffs often attempt to evade rather than overcome these obstacles by relabeling their defamation claims as another form of legal claim.

In lawsuits based upon allegedly false speech, it is common for plaintiffs to include a wide variety of ancillary claims in addition to their main defamation claim. Common additional claims include:

  • Intentional or negligent infliction of emotional distress
  • Tortious interference with contract or business relations
  • "False light" invasion of privacy
  • Unfair or deceptive trade practices
  • Fraud or misrepresentation
  • State or federal civil rights act violations 
  • Conspiracy to commit defamation

Each of these claims has its own elements and defenses, which an attorney can assist you to understand (see especially our section on "false light" claims). However, a number of courts, including the United States Supreme Court, have raised additional concerns when such claims are premised upon allegations that the defendant published a false statement that damaged the plaintiff's reputation -- i.e., the classic defamation lawsuit fact pattern.

In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court considered claims brought against Hustler Magazine by high-profile preacher and pundit Jerry Falwell arising out of a parody ad that ran in the magazine. The claims based on the parody ad included defamation and intentional infliction of emotional distress; a jury decided in Hustler's favor on the defamation claim, but awarded damages to Falwell on the emotional distress claim. The Supreme Court reversed the jury verdict for Falwell on the emotional distress claim, invoking constitutional standards applied in defamation cases to do so.  Rejecting as irrelevant the distinction that emotional distress cases are concerned with an intent to injure feelings rather than reputation, id. at 52-53, the Court held that the First Amendment standards stated in the defamation case of New York Times Co. v. Sullivan were equally applicable to Falwell's emotional distress claims as an essential protection for free speech. Id. at 53-56. Because Falwell had failed to prove "a false statement of fact which was made with 'actual malice,'" the Court held that he was not entitled to recover damages for emotional distress. Id. at 56-57.

Subsequently, other courts have held that plaintiffs cannot evade constitutional and state law privileges and defenses for speech by recasting their defamation claims as different theories of tort. See, e.g., Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) ("[A] plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim."); Tierney v. Vahle, 304 F.3d 734, 743 (7th Cir. 2002) ("To evade the constitutional limitations on defamation suits by charging the alleged defamer with participation in a conspiracy, which is to say just by relabeling the tort, cannot be permitted."); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1034 (2nd Cir. 1997) ("[T]he Chaikens cannot avoid the obstacles involved in a defamation claim by simply relabeling it as a claim for intentional infliction of emotional distress."); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995) ("it is not imaginable that [a false light claim] could escape the same constitutional constraint as [a] defamation claim"); Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) ([T]he malice standard required for actionable defamation claims during labor disputes must equally be met for a tortious interference claim based on the same conduct or statements. This is only logical as a plaintiff may not avoid the protection afforded by the Constitution ... merely by the use of creative pleading."); see also Correllas v. Viveiros, 410 Mass. 314, 324 (1991) ("A privilege which protected an individual from liability for defamation would be of little value if the individual were subject to liability under a different theory of tort.").

Therefore, if a plaintiff brings a variety of claims against you based upon allegedly false statements, you might be able to rely upon both defenses to the particular claims asserted as well as First Amendment and state law defenses to defamation (whether or not the plaintiff actually includes a specific defamation claim in his complaint).

On the other hand, it is unlikely that defamation defenses would apply to claims based upon true speech, such as publication of private facts, or intellectual property claims, such as trademark infringement or violations of the right of publicity. However, these claims are not related to injury to personal reputation; rather, they involve revelation of private information (for a private facts claim), damage to a brand or business (for a trademark claim), or misappropriation of the commercial value of one's name (for a right of publicity claim). If it appears that a plaintiff is attempting to use one of these theories of liability to sue you for damage to his or her individual reputation from an allegedly false statement, you probably would have a strong argument that such theories are simply inapplicable. Rather, the plaintiff would have to proceed instead on a defamation claim (with all of the burdens placed upon the plaintiff in such a case).

Who Can Sue For Defamation

In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. For example, a statement that "a local policeman who recently had an auto accident had been seen drinking alcohol while on duty" would likely be actionable because the policeman could be identified based on his recent accident.

Group Libel

Accordingly, defamatory statements about a group or class of people generally are not actionable by individual members of that group or class. There are two exceptions to this general rule that exist when:

  • the group or class is so small that the statements are reasonably understood to refer to the individual in question; or
  • the circumstances make it reasonable to conclude that the statement refers particularly to the individual in question.

See Restatement (2d) of Torts, § 564A (1977).

As to the first exception -- statements about a small group -- courts have often held that an individual group member can bring a claim for defamation for statements directed at a group of 25 or fewer people. The 25-person line is not a hard-and-fast rule, but rather the way courts commonly distinguish between a group small enough for statements about the whole group to be imputed to individual members and one that is too large to support such an imputation.

The case of Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952), provides a good illustration of this general rule. In that case, the defendants wrote that "most of the [Neiman-Marcus] sales staff are fairies" and that some of the company's saleswomen were "call girls." Fifteen of the 25 salesmen and 30 of the 382 saleswomen at the store brought suit for defamation. Applying New York and Texas law, the court held that the salesmen had a valid cause of action, but the saleswomen did not. Even though the statement referred to "most of" the salesmen, without naming names or specifying further, the statement could be understood to refer to any individual member of this small group. The group of saleswomen, however, was so large that a statement that some of them were "call girls" would not be understood as referring to any individual member of the group.

As to the second exception to the rule against group libel -- when circumstances point to a particular individual -- courts have allowed defamation claims where the statement is facially broad, but the context makes it clear that it referred to the plaintiff. For example, Bill Blogger may be able to claim defamation based on the statement "all bloggers who attended the most recent city council meeting payed bribes to the mayor," where Bill is the only blogger who attended the meeting and readers will therefore understand the statement as being a thinly veiled indictment of him.

A company or organization can be a defamation plaintiff. In fact, the largest jury verdict every awarded in a libel case came in a case brought by a business plaintiff.

Note that each state decides what is required to establish defamation, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.

Fictional Works

A person may claim defamation by a literary or dramatic work intended as fictional if the characters in the work resemble actual persons so closely that it is reasonable for readers or viewers to believe that the character is intended to portray the person in question. A disclaimer that the work is fiction and does not depict any persons living or dead will not automatically foreclose a defamation claim, but it is still a good idea and may be used as evidence as to whether readers or viewers would be reasonable in concluding that it is a depiction of the plaintiff.

What is a Defamatory Statement

A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade. Statements that are merely offensive are not defamatory (e.g., a statement that Bill smells badly would not be sufficient (and would likely be an opinion anyway)). Courts generally examine the full context of a statement's publication when making this determination.

In rare cases, a plaintiff can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact. In most jurisdictions, as a matter of law, a dead person has no legally-protected reputation and cannot be defamed.

Defamatory statements that disparage a company's goods or services are called trade libel. Trade libel protects property rights, not reputations. While you can't damage a company’s "reputation," you can damage the company by disparaging its goods or services.

Because a statement must be false to be defamatory, a statement of opinion cannot form the basis of a defamation claim because it cannot be proven true or false. For example, the statement that Bill is a short-tempered jerk, is clearly a statement of opinion because it cannot be proven to be true or false. Again, courts will look at the context of the statement as well as its substance to determine whether it is opinion or a factual assertion. Adding the words "in my opinion" generally will not be sufficient to transform a factual statement to a protected opinion. For example, there is no legal difference between the following two statements, both of which could be defamatory if false:

  • "John stole $100 from the corner store last week."
  • "In my opinion, John stole $100 from the corner store last week."

For more information on the difference between statements of fact and opinion, see the section on Opinion and Fair Comment Privileges.

Defamation Per Se

Some statements of fact are so egregious that they will always be considered defamatory. Such statements are typically referred to as defamation "per se." These types of statements are assumed to harm the plaintiff's reputation, without further need to prove that harm. Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:

  • a criminal offense;

  • a loathsome disease;

  • matter incompatible with his business, trade, profession, or office; or

  • serious sexual misconduct.

See Restatement (2d) of Torts, §§ 570-574. Keep in mind that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.

It is important to remember that truth is an absolute defense to defamation, including per se defamation. If the statement is true, it cannot be defamatory. For more information see the section on Substantial Truth.

Proving Fault: Actual Malice and Negligence

Unlike other countries that hold a publisher liable for every defamatory statement regardless of what steps he or she took prior to publication, under U.S. law a plaintiff must prove that the defendant was at fault when she published the defamatory statement. In other words, the plaintiff must prove that the publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.

Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbor is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her. Determining who is a public or private figure is not always easy. In some instances, the categories may overlap. For example, a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes.

We discuss both of these standards and when they apply in this section.

Actual Malice

In a legal sense, "actual malice" has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined "actual malice" in the defamation context as publishing a statement while either

  • knowing that it is false; or

  • acting with reckless disregard for the statement's truth or falsity.

It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.

Not surprisingly, this is a very difficult standard for a plaintiff to establish. Indeed, in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation.

The actual malice standard applies when a defamatory statement concerns three general categories of individuals: public officials, all-purpose public figures, and limited-purpose public figures. Private figures, which are discussed later in this section, do not need to prove actual malice.

Public Officials

The "public officials" category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a "public official" for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Some courts have even extended the protection to all individuals engaged in matters of public health, such as hospital staff, given the importance of health issues for the general public. See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).

In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.

Public Figures

There are two types of "public figures" recognized under defamation law: "all-purpose" public figures and "limited-purpose" public figures.

All-purpose public figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). For these individuals, the actual malice standard extends to virtually all aspects of their lives.

This category includes movie stars, elite professional athletes, and the heads of major corporations. Tom Cruise is one; that character actor you recognize instantly but can't quite name is probably not an all-purpose public figure.

As with public officials, the passage of time does not cause this class of individuals to lose their public figure status as long as the original source of their fame is of continued interest to the public.

Limited-Purpose Public Figures

The second category of public figures is called "limited-purpose" public figures. These are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate.

This category also includes individuals who have distinguished themselves in a particular field, making them "public figures" regarding only those specific activities. These limited-purpose public figures are not the Kobe Bryants, who are regarded as all-purpose public figures, but rather the journeymen basketball players of the league.

For limited-purpose public figures, the actual malice standard extends only as far as defamatory statements involve matters related to the topics about which they are considered public figures. To return to our basketball example, the actual malice standard would extend to statements involving the player's basketball career; however, it would not extend to the details of his marriage.

As regards figures who become prominent through involvement in a current controversy, the law is unfortunately rather murky. In general, emphasis is placed not on whether the controversy is a subject of public interest, but rather:

  • The depth of the person's participation in the controversy.
  • The amount of freedom he or she has in choosing to engage in the controversy in the first place (e.g., if they were forced into the public light). See Wolston v. Reader's Digest Association, 443 U.S. 157 (1979).
  • Whether he has taken advantage of the media to advocate his cause. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).

Keeping in mind the difficulty of making the determination of who is a limited-purpose public figure, we've collected the following cases which might be helpful. Courts have found the following individuals to be limited-purpose public figures:

  • A retired general who advocated on national security issues. See Secord v. Cockburn, 747 F.Supp. 779 (1990).
  • A scientist who was prominent and outspoken in his opposition to nuclear tests. See Pauling v. Globe-Democrat Publishing Co., 362 F.2d 188 (1966).
  • A nationally-known college football coach accused of fixing a football game. See Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).
  • A professional belly dancer for a matter related to her performance. See James v. Gannet Co., 40 N.Y.2d 415 (1976).
  • A Playboy Playmate for purpose of a parody. See Vitale v. National Lampoon, Inc., 449 F. Supp 442 (1978).

Courts have found the following individuals not to be limited-purpose public figures (and therefore private figures):

  • A well-known lawyer and civic leader engaged in a very public trial involving police brutality. See Gertz v. Robert Welch Inc., 418 U.S. 323 (1972).
  • A socialite going through a divorce who both collected press clippings on herself and held press conferences regarding the divorce. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).
  • A Penthouse Pet for purposes of parody. See Pring v. Penthouse Int'l Ltd., 695 F.2d 438 (1982).

Individuals who are considered to be limited-purpose public figures remain so as long as the public has an "independent" interest in the underlying controversy. Unlike all-purpose public figures, it is relatively easy for a limited-purpose public figure to lose his status if the controversy in which he is involved has been largely forgotten. But most will still maintain their status. For example, a woman who had publicly dated Elvis Presley over a decade earlier, but who had since married and returned to "private" life, was found to remain a public figure for stories related to her relationship with Presley. See Brewer v. Memphis Publishing Co., 626 F.2d. 1238 (5th Cir. 1980).

Evaluating Public Officials, Public Figures, and Limited-Purpose Public Figures

A public official is a person who holds a position of authority in the government and would be of interest to the public even if the controversy in question had not occurred.

  • The actual malice standard extends to statements touching on virtually any aspect of the public official's life.
  • Even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.
All-purpose public figures are those whose fame reaches widely and pervasively throughout society.
  • The actual malice standard extends to statements involving virtually any aspect of their private lives.
  • Passage of time does not affect their status as public figures as long as the source of their fame is of continued interest to the public.
A limited-purpose public figure is either:
  1.  
    1. One who voluntarily becomes a key figure in a particular controversy, or
    2. One who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.
  • The actual malice standard applies only to subject matter related to the controversy in question or to the field in which the individual is prominent, not to the person's entire life.
  • Passage of time does not affect an individual who has achieved fame through participation in a controversy as long as the public maintains an "independent" interest in the underlying controversy.

See this Chart of Public vs Private Individuals for additional examples.

Defining who is a public figure for purposes of First Amendment protections is a question of federal constitutional law, and therefore the federal courts say on the matter is decisive and binding on state courts. Accordingly, state courts cannot remove public-figure status from those who have been deemed public figures by the federal courts, but states can broaden the scope of the the classification. For example, while the Supreme Court has not spoken on the status of educators, most states have recognized teachers as a class of public figures. But some states, for example California, have not done so. Consult your State Law: Defamation section for specific guidelines on your jurisdiction.

Negligence Standard and Private Figures

Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than "actual malice." Some states, however, impose a higher standard on private figures, especially if the statement concerns a matter of public importance. You should review your state's specific law in the State Law: Defamation section of this guide for more information.

A plaintiff can establish negligence on the part of the defendant by showing that the defendant did not act with a reasonable level of care in publishing the statement at issue. This basically turns on whether the defendant did everything reasonably necessary to determine whether the statement was true, including the steps the defendant took in researching, editing, and fact checking his work. Some factors that the court might consider include:

  • the amount of research undertaken prior to publication;

  • the trustworthiness of sources;

  • attempts to verify questionable statements or solicit opposing views; and

  • whether the defendant followed other good journalistic practices.

While you can't reduce your legal risks entirely, if you follow good journalistic practices you will greatly reduce the likelihood that you will be found negligent when publishing a defamatory statement. Review the sections in this guide on Practical Tips for Avoiding Liability Associated with Harms to Reputation and Journalism Skills and Principles for helpful suggestions.

Examples of Public and Private Figures

Review this list of examples to help understand the difference between public figures/officials, limited-purpose public figures, and private figures for purposes of defamation law.

Name Type
Town Mayor

 

Public Official (A mayor is an elected official and therefore is a public official for purposes of defamation law.)

 

George W. Bush

 

Public Official (The President of the United States is an elected official and therefore is a public official for purposes of defamation law.)

 

Laura Bush

 

Public Figure (The President’s wife is a person who has pervasive power and influence in society and is therefore a public figure for purposes of defamation law.)

 

Paris Hilton

 

Public Figure (Well-known celebrities have pervasive power and influence in society and are therefore public figures for purposes of defamation law.)

 

Bill Gates

 

Public Figure (As the head of a major corporation and one of the richest men in the world, Bill Gates is a public figure for purposes of defamation law.)

 

Roger Clemens

 

Public Figure or Limited-Purpose Public Figure (Roger Clemens is a well-known athlete and likely to be considered a public figure; at a minimum, he would be a limited-purpose public figure as to issues involving sports.)

 

Local expert on teen suicide

 

Limited-Purpose Public Figure (The expert would be a limited-purpose public figure because she has distinguished herself in this particular field.)

 

Church pastor who decries abortion

 

Limited-Purpose Public Figure (The pastor would be a limited-purpose public figure because he thrust himself to the forefront of a particular controversy in order to influence the resolution of the issue.)

 

Local grocery store manager

 

Private Figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)

 

Your shy neighbor

 

Private figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)

Defamation Privileges and Defenses

As a general rule, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make your work more accurate and credible).

There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.

Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information you are performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Keep in mind, however, the privileges described below are not available in all circumstances or in every state, so you should also review your state's specific law in the State Law: Defamation section of this guide.

Possible privileges and defenses include:

  • Substantial Truth: "Truth" is an absolute defense to an action for defamation. Even if you are not sure that what you've published is true, you should read this section.

  • Opinion and Fair Comment Privileges: Statements of opinion generally cannot support a cause of action for defamation, even if they are outrageous or widely off the mark. A defense similar to opinion is "fair comment on a matter of public interest." If the mayor is alleged to be involved in a corruption scandal, expressing your opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

  • Fair Report Privilege: This very important privilege may apply if you relied on a public document or a statement by a public official for the incorrect information, made clear that the public document or statement was your source, and fairly and accurately used the source.

  • Neutral Reportage Privilege: The neutral reportage privilege covers unverified accusations made by one public figure about another on a matter of legitimate public interest, such as when a politician who opposes a health care bill says that the bill's sponsor is taking money from the pharmaceutical industry.

  • Wire Service Defense: If you republish information from a reputable news source (such as the Associated Press) you may be entitled to the wire service defense if it turns out that the information was false.

  • Statute of Limitations: If the plaintiff has waited too long to file a lawsuit, the defamation claim might be barred by the statute of limitations, which sets the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred.

Substantial Truth

"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.

The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.

The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.

Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:

We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).

Some examples of statements that courts have found to be "substantially true":

  • A statement that a boxer tested positive for cocaine, when actually he had tested positive for marijuana. See Cobb v. Time Inc. 24 Media L. Rep. 585 (M.D. Tenn 1995).

  • A statement that an animal trainer beat his animals with steel rods, when actually he had beaten them with wooden rods. See People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269 (Nev. 1995).

  • A statement that a father sexually assaulted his stepdaughter 30-50 times, when the stepdaughter testified he had done so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich. App. 577 (1993).

  • A statement that a man was sentenced to death for six murders, when in fact he was only sentenced to death for one. See Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del. Super. Ct. 1998).

  • A statement that Terry Nichols was arrested after the Oklahoma City Bombing, when actually he had only been held as a material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).

  • A statement that a man was charged with sexual assault, when actually he had only been arrested but not arraigned. See Rouch v. Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

Opinion and Fair Comment Privileges

The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.

This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion.

Compare the following two statements:

  • "During the last six months I've seen Carol in her backyard five times at around 1:30pm on a weekday seated in a deck chair with a beer in her hand. I think Carol must be an alcoholic."

  • "I think Carol must be an alcoholic."

The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege.

Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology.

To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion

In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.

Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.

Some examples of protected opinions include the following:

  • Statements in the "Asshole of the Month" column in Hustler magazine that described a feminist leader as a "pus bloated walking sphincter," "wacko," and someone who suffers from "bizarre paranoia" were protected opinion because the context of the magazine and column made it clear that the statements were "understood as ridicule or vituperation" and "telegraph to a reader that the article presents opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

  • Statement in the New York Post that referred to the plaintiff as a "fat, failed, former sheriff's deputy" was protected opinion because it was hyperbole and had an "alliterative quality" with a "rhetorical effect indicative of a statement of opinion." Jewell v. NYP Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

  • Statements on a radio talk show that described the plaintiff as a "chicken butt," "local loser" and "big skank" were not defamatory because they were "too vague to be capable of being proven true or false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

  • A cartoon of a noted evangelist leader fornicating drunk in an outhouse with his mother because the parody was so outrageous it could not "reasonably be understood as describing actual facts" about Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.

Context and the Totality of the Circumstances

In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion.

The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context.

But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat-room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat-room. They were part of an on-going, free-wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege.

To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

  • What is the common usage and specific meaning of the language used?

  • Is the statement verifiable? Can it be proven false?

  • What is the full context of the statement?

  • What are the social conventions surrounding the medium the statement occurred in?

Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

Fair Report Privilege

The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.

The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.

Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

  1. Your source is an official public document or statement by a public official on a matter of public concern;

  2. You properly attribute the information to that source; and

  3. You fairly and accurately portray the information from the document or statement.

Sources Covered By the Fair Report Privilege

While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.

Examples where the fair report privilege would probably apply include:

  • Statements made by a judge in a trial
  • A speech made by a city council member during a council meeting
  • Testimony during a trial
  • Facts recorded in a final police report
  • Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to:

  • Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report
  • Gossip overheard on the courthouse steps
  • Offhand remarks made by a government official in a private setting
  • Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.

Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.

Ensuring That Your Use of Sources is "Fair and Accurate"

Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.

Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.

But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.

In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.

Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

Neutral Report Privilege

Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.

Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

  1. A responsible, prominent organization or individual;

  2. Makes a serious charge on a matter of public interest;

  3. Against another public figure or organization; and

  4. The charge is accurately and disinterestedly reported.

Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).

The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.

Edwards, 556 F.2d at 120.  The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege

Examples of instances where courts have applied the neutral reportage privilege include:

  • Newspaper report that a state auditor accused a town trustee of faking a snow emergency to gain access to emergency funds. Watson v. Leach, 1996 Ohio App. LEXIS 2474 (Ohio Ct. App. 1996).
  • A newspaper report that a political campaign brochure accused the county's Italian-American judges of having mafia connections. Celebrezze v. Netzley, 1988 Ohio App. LEXIS 3153 (Ohio Ct. App. 1988).
  • A land developer calling another developer "unscrupulous" during a town meeting. McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274, 275 (Ga. Ct. App. 1978).

Differing State Approaches to the Neutral Reportage Privilege

Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:

  • Private figure plaintiffs: Edwards v. National Audubon involved an instance where the person defamed (the plaintiff) was a nationally known scientist, a prominent public figure. In cases where the plaintiff is a private person, courts have split over whether to recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of involvement in the Robert Kennedy assassination). The trend, however, seems to be for courts to recognize the privilege even when private figure plaintiffs are involved.

  • Trustworthy and prominent sources: Few sources are more trustworthy and prominent than the National Audubon society talking about an issue related to bird populations. But often this is not the case. Major stories can come from sources who are neither "trustworthy" nor "prominent." The courts go both ways on the issue of whether the privilege applies to cases like these. Many judges have emphasized the trustworthiness of the source as a key determining factor in whether the privilege applies; others take a broader view on the circumstances of the story.

  • Public interest and newsworthiness: A scientist allegedly covering up the fact that DDT was killing birds was something the public had a strong interest in being informed of. Courts vary, however, as to how legitimate the public interest needs to be. Some require that there must be a "raging controversy" involving an issue related to the public good. Others are more lenient. Consult your individual state defamation section, but also keep in mind that judges will often look more favorably at the applicability of the privilege if there is a strong public interest in the accusation.

Wire Service Defense

If you republish a news item from a "reputable news service," you may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also cover if you republish content from a third-party. See the section on Publishing the Statements and Content of Others for more information.

Generally speaking, in states that recognize the wire service defense, it will apply if:

  1. You republish a news item from a reputable news agency;

  2. You did not know the information was false;

  3. The news item on its face does not indicate any reason to doubt its veracity; and

  4. You do not substantially alter the news items when republishing it.

In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire-service defense in light of RSS feeds and similar distribution tools.

Keep in mind that rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense.

Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.

Statute of Limitations

"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts.

Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.

Because each state has its own statute of limitations for defamation claims, which vary between one and three years, you should refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.

Determining When the Statute of Limitations Period Begins

Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff).

This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, could the statute of limitations begin anew at the time of each publication, such that the statute of limitations could restart every time someone reads a blog post or finds an archive copy of a newspaper in a library, even if the original material was published years ago?

Single Publication Rule

Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if you are thinking of substantially editing or rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.

State Law: Defamation

 

Choose a state from the list below for state-specific information on defamation law.  For general information on defamation and false light, see the section on Publishing Information that Harms Another's Reputation.

Arizona Defamation Law

Note: This page covers information specific to Arizona. For general information concerning defamation, see the Defamation Law section of this guide.

Arizona Elements of Defamation

In Arizona, the elements of a defamation claim are:

  1. a false statement concerning the plaintiff;
  2. the statement was defamatory;
  3. the statement was published to a third party;
  4. the requisite fault on the part of the defendant; and
  5. the plaintiff was damaged as a result of the statement.

Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).

To be “defamatory,” a statement must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).

These elements of a defamation claim in Arizona are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Arizona distinguishes between statements that constitute libel per se and libel per quod. Libel per se are written communications which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honesty, integrity, virtue or reputation.” Ilitzky v. Goodman, 57 Ariz. 216, 220‑21 (Ariz. 1941). In contrast, libel per quod consists of written communications which “on their face do not fall within the definition [of defamation] but which by reason of special extraneous circumstances actually do.” Id. at 221.

Arizona also distinguishes between statements that constitute slander per se and slander per quod. In Arizona, a statement that does any of the following is slander per se:

  • Charges a contagious or venereal disease, or that woman is not chaste; or
  • Tends to injure a person in his profession, trade, or business; or
  • Imputes the commission of a crime involving moral turpitude.

Modla v. Parker, 495 P.2d 494, 4 n.1 (Ariz. Ct. App. 1972). Slander per quod are “all slanderous utterances which are not slanderous per se.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 1, 6 n.4 (Ariz. Ct. App. 1985) approved as supplemented by Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9 (Ariz. 1986).

The distinction between libel per se and per quod and slander per se and per quod matters because it effects the type of damages a plaintiff must allege to prevail. To recover for libel or slander per quod, a plaintiff must allege special damages, i.e., lost profits or other "pecuniary loss." Boswell, 152 Ariz. 1, 6 n.4. In contrast, to recover for libel or slander per se, a plaintiff does not have to allege special damages and may instead allege non-pecuniary damages, such as damage to his reputation. Moreover, in cases of libel or slander per se, damages may be presumed if:

  1. The plaintiff is a private figure and the alleged defamatory statement involves a matter of purely private concern; Dombey v. Phoenix Newspapers, Inc., 150 Ariz. 476, 481 (Ariz. 1986) or
  2. Actual malice is proven. Id.

Public Officials

Arizona courts have considered whether certain lower-level government employees qualify as public officials. They have held that the following individuals, among others, are public officials:

Public Figures and Limited-Purpose Public Figures

In Arizona, to classify a person as a public figure, the person must have achieved “‘such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Dombey, 150 Ariz. at 480 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

The Arizona Supreme Court has recognized that an individual may become a limited-purpose public figure for a certain event or controversy when he “‘voluntarily injects himself or is drawn into a particular public controversy. . . .’” Id. (quoting Gertz, 418 U.S. at 351).

In determining whether a person is a limited-purpose public figure, Arizona courts will consider whether the person has “‘thrust[] himself or his views into public controversy to influence others’” and whether the person’s “‘position with respect to matters of public concern gives him access to the media on a regular and continuing basis.’” Id. at 483 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).

The Arizona Supreme Court has held that a person “‘is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.’” Id. (quoting Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979). Rather, the person must voluntarily assume a position that invites attention. Id. at 485 (quoting McDowell v. Paiewonsky, 769 F.2d 942, 950 (3rd Cir. 1985). In that regard, the Court has stated that “doing business with the government, being swept up in a controversy over an issue of public interest or concern, being named in articles creating a public controversy, and defending oneself against charges leveled in the media are all insufficient to automatically transform a private individual into a public figure.” Id. at 484.

Arizona courts and the 9th Circuit have held the following individuals, among others, to be limited-purpose public figures:

  • A “publicly self‑acknowledged former hoodlum and organized crime enforcer” who testified against a mob boss in exchange for immunity from prosecution. Scottsdale Publ’g, Inc. v. Superior Court, 159 Ariz. 72, 73, 74 (Ariz. Ct. App. 1988).
  • A World War II veteran who had authorized a biography and solicited press coverage of that work. Thomas v. Los Angeles Times Commc’ns. LLC, 45 Fed. Appx. 801, 803 (9th Cir. 2002).
  • The insurance agent of record for an Arizona county, where the insurance agent made recommendations resulting in substantial expenditures from the public and financially benefited from his position, although he was not actually employed by the county. Dombey, 150 Ariz. at 484‑85.
  • An individual, in suing his former employer for defamation, who had contacted the media regarding his claims of wrongful termination and sent his complaint to approximately twenty companies in related business fields. Prendeville v. Singer, 155 Fed. Appx. 303, 305-06 (9th Cir. 2005).

On the other hand, Arizona courts have found the following individuals and organizations, among others, to be private figures:

Actual Malice and Negligence

Arizona courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages. Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 (Ariz. 1977).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

Arizona courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Comment Privilege

In Arizona, the fair comment privilege “is limited to discussions of matters which are of legitimate concern to the community as a whole because they materially affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968).  If actual malice is shown, however, the privilege is defeated. Id.

The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official.  The Arizona Supreme Court ruled that regardless of the defendant's media status, "when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie." Turner v. Devlin, 174 Ariz. 201, 205 (1993).

The Arizona Supreme Court in the past has also explicitly recognized pure opinion as protected speech. MacConnell v. Mitten, 131 Ariz. 22, 25 (1981) (finding a statement "was pure opinion and not actionable").  It is unclear whether this recognition survived Turner and Milkovich v. Lorain Journal Co., 497 U.S. 1 (1993), however.

Fair Report Privilege

In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.

In Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 147 (Ariz. Ct. App. 1989), the Court of Appeals of Arizona held that the “public records privilege” applied to articles which were “a fair and accurate abridgment of the public records used.” In that case, the Arizona Republic published articles about the apprehension of a hitman at a local restaurant, which it described as a “hangout for narcotics dealers and users” owned by a man being investigated for fraud and attempted extortion. Id. at 145. The owners of the restaurant filed suit for defamation. The information in the articles was obtained from interviews with police officers, affidavits submitted to support searches of various locations, a grand jury indictment, and a booking slip on file at the Phoenix Police Department. Id. at 145‑46. The Court reviewed the articles, the search warrant affidavits, grand jury indictment, and booking slip and concluded that although the newspaper may have relied on interviews with police officers, which are not a public record, because the information obtained was available in the affidavits, indictment, and booking slip, the privilege applied. Id. at 146‑47.

Neutral Reportage Privilege

The CMLP has not identified any cases in Arizona concerning the neutral reportage privilege. If you are aware of any, please contact us. The 9th Circuit has mentioned the adoption of the neutral reportage privilege in other jurisdictions but does not appear to have specifically adopted it itself. See Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002).

Wire Service Defense

A federal district court in Arizona has applied the wire service defense in at least one case. In In re Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 931 F. Supp. 1487, 1492 (D. Ariz. 1996), the court held that the defense applied to an ABC-affiliate in Phoenix that broadcast an edition of “Prime Time Live” but played no part in the planning, reporting, production, or editing of the broadcast.

Retraction or Correction

By statute in Arizona, the type of damages a plaintiff may recover from a newspaper, magazine, or radio or television broadcaster can be limited by the publication of a retraction. A.R.S. § 12‑653.02 provides:

In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages [i.e. damages with respect to the plaintiff’s property, business, trade, profession or occupation] unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

If a correction is demanded within the time period prescribed by A.R.S. § 12‑653.02 and a correction is not published or broadcast within three weeks, the plaintiff may recover damages for loss of reputation and punitive damages if she can prove actual malice. A.R.S. § 12‑653.03.

The applicability of the retraction statute in all cases in questionable because the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986).

The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

At least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

Other Statutory Protections for Periodicals and Broadcasters

A.R.S. § 12‑653 provides:

An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

A.R.S. § 12‑652 provides:

  1. The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.
  2. An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.
  3. In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

CMLP has not identified any Arizona cases in which these statutes have been applied. If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See A.R.S. § 12‑541. The Court of Appeals of Arizona has stated that the general rule is that the statute of limitations begins to run upon publication; however, the Court has also created an exception to the general rule and held that the statute of limitations may instead begin to run upon discovery “in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report.” Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).

By statute, the single publication rule applies in Arizona. See A.R.S. § 12-651. The statute provides, in pertinent part:

  1. No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
  2. A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

The CMLP is not aware of any cases in Arizona that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Arizona cases that acknowledge the single publication rule in the Internet context, please notify us.

California Defamation Law

Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.

California Elements of Defamation

Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.

The elements of a defamation claim are:

  1. publication of a statement of fact
  2. that is false,*
  3. unprivileged,
  4. has a natural tendency to injure or which causes "special damage," and
  5. the defendant's fault in publishing the statement amounted to at least negligence.

Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.

*As a matter of law, in cases involving public figures or matters of public concern, the burden is on the plaintiff to prove falsity in a defamation action.  Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). In cases involving matters of purely private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999).  A reader further points out that, even when the burden is technically on the plaintiff to prove falsity, the plaintiff can easily shift the burden to the defendant simply by testifying that the statements at issue are false.

Defamation Per Se

A plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature.  See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008). 

For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).

Public Officials

In California, public officials are those who have, or appear to the to have, substantial responsibility for or control over the conduct of government affairs. For example, the following persons have been considered public officials in California:

  • A police officer, an assistant public defender, an assistant district attorney, and a government employed social worker.

Public Figures

In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Someone who voluntarily seeks to influence resolution of public issues may also be considered a public figure in California. For example, the following persons have been considered public figures in California:

  • A former City Attorney who also represented the city's redevelopment agency;

  • A licensed clinical psychologist whose so-called “Nude Marathon” in group therapy is a means of helping people to shed their psychological inhibitions by the removal of their clothes;

  • An author and television personality;

  • The founder of a Church that has a program for the rehabilitation of drug addicts;

  • An associate of Howard Hughes, a famous aviator, movie producer, and billionaire, from approximately 1956 to 1970 who functioned as an "alter ego" and "personal representative" of Mr. Hughes;

  • A real-estate developer who was interested in building a housing development near a toxic chemical plant; and

  • A "prominent and outspoken feminist author" and anti-pornography advocate.

Limited-Purpose Public Figures

A limited-purpose public figure is a person who voluntarily injects herself or is drawn into a particular public controversy. It is not necessary to show that she actually achieves prominence in public debate; her attempts to thrust herself in front of the public is sufficient. Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose public figures, the alleged defamation must be relevant to the plaintiff's voluntary participation in the public controversy (if the issue requires expertise or specialized knowledge, the plaintiff's credentials as an expert would be relevant).

In California, the following persons have been considered limited-purpose public figures:

  • The president of two corporations located in a California village that opposed the rezoning of property adjacent to his property. Kaufman v. Fidelity Fed. Sav. & Loan Ass'n, 189 Cal.Rptr. 818 (Cal. Ct. App. 1983);
  • An individual who publicly claimed to be an expert in earthquake safety and a veteran in earthquake rescue operations. Copp v. Paxton, 52 Cal.Rptr.2d 831 (Cal. Ct. App. 1996).

Actual Malice and Negligence

In California, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

California courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, and substantial truth.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

California courts have codified the fair report privilege in Cal. Civil Code §47(d) and (e). The privilege generally applies to publicly available government records, official government reports, and statements made by government officials.

Neutral Reportage Privilege

The California Supreme Court has not formally recognized the neutral reportage privilege. Nevertheless, several federal courts have applied the neutral report privilege in cases involved California law and there are relatively strong indications that state courts in California would apply the privilege if faced with the proper fact pattern.

The California Supreme Court indicated a possible willingness to consider the neutral report privilege in the context of public figure defamation. In that case, which involved an allegation that the plaintiff, a private citizen, participated in the Robert Kennedy assassination when he was 21 years old, the California Supreme Court held that the neutral report privilege did not apply to cases where the plaintiff was a private figure. Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question, however, whether the neutral report privilege would apply if the defamatory statement involved a public figure.

In addition, several lower California courts have expressed support for the privilege without directly ruling that the privilege applies. See Weingarten v. Block, 102 Cal. App. 3d 129, 148 (1980); Grillo v. Smith, 144 Cal. App. 3d 868, 872 (1983); Stockton Newspapers, Inc. v. Superior Court, 206 Cal. App. 3d 966, 981 (1988); Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 732-33 n.18 (Cal. Ct. App. 1989).

Although their application of the privilege is not binding on California state courts, two federal courts in the state have applied the neutral reportage privilege in situations involving the following:

  • A college basketball player (ruled a public figure) who accused his coach (also deemed a public figure) of participating in payments made to the player by team boosters. Barry v. Time, Inc., 584 F. Supp. 1110, 1112 (D. Cal. 1984). The court held that there was no requirement that the person making the accusation have a reputation for "trustworthiness" for the neutral report privilege to apply.
  • The details published by a tabloid, News of the World, about the private life of a well known actor. Ward v. News Group Int'l, 733 F. Supp. 83 (D. Cal. 1990). The court emphasized that the republication occurred in a fair and accurate manner and that the tabloid published the actor's denial along with the accusation.

Wire Service Defense

The wire service defense generally is not recognized in California. However, one trial court in California did recognize the wire service defense in an unpublished decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court level and unpublished, other California courts are free to disregard the court's decision to apply the wire service defense.

Statute of Limitations for Defamation

California's statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).

California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass'n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004).  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

District of Columbia Defamation Law

Note: This page covers information specific to the District of Columbia. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

According to District of Columbia law, defamation claims have four elements:

  1. the defendant made a false and defamatory statement concerning the plaintiff;
  2. the defendant published the statement without privilege to a third party;
  3. the defendant's fault in publishing the statement amounted to at least negligence; and
  4. either the statement was actionable as a matter of law irrespective of special harm or its publication caused the plaintiff special harm.

See Jankovic v. International Crisis Group, 429 F.Supp.2d 165, 173-4 (D.D.C. 2006). The elements of a defamation claim in the District of Columbia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In the District of Columbia, any written or printed statement that falsely accuses someone of committing a crime constitutes defamation per se. See Raboya v. Shrybman & Associates, 777 F.Supp. 58 (D.D.C. 1991). If a statement is defamation per se, the court will assume harm to the plaintiff's reputation, without further need to prove that harm.

The District no longer allows presumed damages for defamation per se directed at public figures, following the U.S. Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007) (affirming unpublished lower court decision implying that presumed damages are no longer available for public figures). The court in El-Hadad noted that D.C. law provides for presumed damages for defamation per se directed at private figures.

Public Figures

Federal courts in D.C., applying D.C. law, have ruled that corporate plaintiffs are considered public figures as a matter of law in lawsuits against mass media defendants that involve "matters of legitimate public interest." See Oao Alfa Bank v. Center for Public Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). The opinions of federal district courts are not definitive on the meaning of D.C. law, but other cases might choose to follow this rule. Should they decide to do so, then any corporation -- no matter how large -- would have to prove actual malice in order to prevail in such cases. There is no reason to believe this rule would not apply to lawsuits involving citizen media defendants because the underlying rationale focuses on the characteristics of corporations, not those of the defendant in the lawsuit. 

Actual Malice and Negligence

In the District, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

District of Columbia courts recognize a number of privileges and defenses in the context of defamation actions, including the wire service defense, the fair report privilege, the opinion and fair comment privileges, and substantial truth.

It is not clear whether the D.C. courts recognize the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

D.C. courts recognize the the fair report privilege.  The privilege is applied broadly to statements made during proceedings before any court, agency, executive body, legislative body, and to reports of any official proceeding or action taken by a government officer or agency.

Wire Service Defense

D.C. recognizes the wire service defense, which precludes defamation liability for speakers who republish content from wire services. D.C. also recognizes the reverse of the standard wire service defense: wire services may rely on content from reputable newspapers without being held negligent. See Winn v. UPI, 938 F.Supp. 39 (D.D.C. 1996).

Neutral Reportage Privilege

District of Columbia courts have not ruled definitively on the availability of the neutral reportage privilege.

In White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990), the U.S. Court of Appeals for the D.C. Circuit noted that it had not yet recognized the neutral reportage privilege, although the court seemed to express a favorable view of it. At least one lower D.C. court has applied the privilege. See In re United Press Intern, 106 B.R. 323 (D.D.C. 1989) (news reports were immune from defamation liability under neutral reportage). In an earlier case, a federal district court held that the neutral report privilege would not apply to a case involving statements about a private figure. See Dressbach v. Doubleday & Co., 8 Media L. Rep. 1793 (D.D.C. 1982).

Statute of Limitations for Defamation

The District's statute of limitations for defamation is one (1) year. See D.C. Code Sec 12-301(4).

The District has adopted the single publication rule. See Jin v. Ministry of State Secretary, 254 F.Supp. 2d 61, 68 (D.D.C. 2003). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

In Jankovic v. International Crisis Group, 494 F.3d 1080 (D.C. Cir. 2007), the D.C. Circuit held that the single publication rule applies to statements posted on the Internet, and that the statute of limitations runs from the date of first publication absent "republication" of the allegedly defamatory statement by updating it or taking steps to expand the audience for it. While the Court of Appeals of the District of Columbia has not ruled on the issue as a matter of state law, it is likely that other D.C. courts would apply this holding. Therefore, the statute of limitations in Internet cases should run from the date of first posting, absent some modification that triggers "republication."

Florida Defamation Law

Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Florida law, the elements of a defamation claim are:

  1. the defendant published a false statement;
  2. about the plaintiff;
  3. to a third party; and
  4. the falsity of the statement caused injury to the plaintiff.

Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.  The elements of a defamation claim in Florida are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985), the Florida Supreme Court ruled that the state no longer recognizes presumed damages for defamation per se in lawsuits against media defendants. (Defamation "per se" refers to a legal doctrine which holds that some statements of fact are so egregious that a court will presume that they harmed the plaintiff's reputation.) The CMLP is not aware of any Florida cases deciding whether a blogger or non-traditional journalist is a "media defendant" for purposes of applying this rule. In cases involving matters of purely private concern, a Florida court could still presume damages based on defamation per se. In Florida, a statement amounts to defamation per se if it accuses the plaintiff of committing a crime or imputes to the plaintiff conduct, characteristics, or a condition incompatible with the proper exercise of his or her lawful business, trade, profession, or office.

Public and Private Figures

Florida has a broad conception of public officials, a category of government actors who must prove actual malice in order to prevail on a defamation claim. The Florida Supreme Court found a police officer to be a public official where he was a "highly visible representative of government authority who has power over citizens and broad discretion in the exercise of that power." Smith v. Russell, 456 So.2d 462 (Fla. 1984). Florida courts have found that a corrections officer, an administrator of large public hospital, and even a harbormaster were public officials.

Criminal Libel

Unlike most states, Florida still recognizes criminal libel. Chapter 836 of the Florida Statutes does not define the elements of criminal libel, but it does specifically prohibit false statements that harm a bank or other financial institution's reputation or accuse a female of being unchaste. To the extent that the statute remains valid, criminal libel is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11 -- which deals with anonymous defamation of individuals or religious groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067 (Fla.Ct.App., 4th Dist. 2001).

Actual Malice and Negligence

In Florida, a private figure plaintiff bringing a defamation lawsuit generally must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Florida courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the fair report privilege, and the wire service defense. The Florida Supreme Court has not explicitly recognized the neutral reportage privilege, but lower court cases have recognized it.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Neutral Reportage Privilege

The Florida Supreme Court has not formally recognized the neutral reportage privilege, but there are indications that Florida would recognize it. Two lower court cases have endorsed the privilege. See Smith v. Taylor County Pub. Co., 443 So. 2d 1042, 1044 (Fla. 1st DCA 1983); Huszar v. Gross, 468 So. 2d 512, 515 (Fla. 1st DCA 1985). Both cases recognized the privilege even in instances where the plaintiff is a private figure. The Court of Appeals for Florida's Third District spoke favorably of these cases. See Brake & Alignment Supply Corp. v. Post-Newsweek Stations of Florida, Inc, 472 So. 2d 517, 518 (Fla. 3rd DCA 1985).

Statute of Limitations for Defamation

Florida's statute of limitations for defamation is two (2) years. See Fla. Stat. § 95.11(4)(g).

Florida applies the single publication rule. See Fla. Stat. § 770.07. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

To our knowledge, Florida appellate courts have considered the application of the single publication rule to the Internet on only one occasion, in Rudloe v. Karl, No. 1D03-4651 (Fla. Dist. Ct. App. Nov. 5, 2004). In that opinion, the District Court of Appeal for the First District wrote that the single publication rule applies to Internet content, and that the statute of limitations does not reset every time that a new user accesses allegedly defamatory material. However, after a rehearing, this opinion was withdrawn by the court and superseded by an opinion that did not address statute of limitations issues. Accordingly, while the original opinion might suggest the manner in which Florida courts would apply the single publication rule to online speech, the opinion itself has no precedential value and should not be cited in court.  If you are aware of any additional Florida cases that address the single publication rule in the Internet context, please notify us.

Georgia Defamation Law

Note: This page covers information specific to Georgia. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Georgia, the elements of a defamation claim are:

  1. a false statement about the plaintiff;
  2. communication of the statement to a third party in the absence of a special privilege to do so;
  3. fault of the defendant amounting at least to negligence; and
  4. harm to the plaintiff, unless the statement amounts to per se defamation. See Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

These elements of a defamation claim in Georgia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Georgia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Under Georgia statutes, a statement is defamatory per se if it:

  • charges another person with a crime punishable by law;
  • charges another person “with having some contagious disorder or with being guilty of some debasing act which may exclude him from society;” or
  • refers to the trade, office, or profession of another person, and is calculated to injure him.

See Ga. Code Ann. §51-5-4.

Georgia courts have interpreted defamation per se to include statements “that one is guilty of a crime, dishonesty or immorality,” Eidson v. Berry, 415 S.E.2d 16, 17 (Ga. Ct. App. 1992), or that accuse one “of having sexual relations with any person other than his wife,” Baskin v. Rogers, 493 S.E.2d 728, 730 (Ga. Ct. App. 1997). The courts have narrowed the criteria for defamation of a business person by adopting the “single instance test.” A plaintiff has no grounds for a complaint if the alleged defamatory statement refers to only a single instance of mistake or ignorance on the part of a business or professional person. See Crown Andersen, Inc. v. Georgia Gulf Corp., 554 S.E.2d 518, 521 (Ga. Ct. App. 2001).

Who Can Sue For Defamation

Georgia recognizes no “right of action for defamation of a deceased person.” Saari v. Gillett Communications of Atlanta, Inc., 393 S.E.2d 736, 736 (Ga. Ct. App. 1990). However, if a defamation plaintiff dies after suit is filed, the representative of the deceased plaintiff's estate may continue the lawsuit. Johnson v. Bradstreet Co., 13 S.E. 250, 252 (Ga. 1891).

Limited-Purpose Public Figures

Georgia follows Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), in defining public figures. The Georgia Court of Appeals refined its test for limited-purpose public figures in the well-known case of Richard Jewell, the security guard during the 1996 Olympics in Atlanta who was first hailed as a hero for discovering a knapsack bomb in Centennial Olympic Park, but later was investigated by the FBI as a possible suspect in placing the bomb. In the court's view, by granting a series of media interviews in which he attempted to influence public perception of security at the park, Jewell became a voluntary limited-purpose public figure for purposes of his libel suit against an Atlanta newspaper. See Atlanta Journal-Constitution v. Jewell, 555 S.E.2d 175, 185 (Ga. Ct. App. 2001).

The Georgia Court of Appeals adopted a three-part test for determining who is a limited-purpose public figure: “the court must [1] isolate the public controversy, [2] examine the plaintiff's involvement in the controversy, and [3] determine whether the alleged defamation was germane to the plaintiff's participation in the controversy.” Atlanta Journal-Constitution v. Jewell, 555 S.E.2d at 183.

Actual Malice and Negligence

In Georgia,  a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards. 

Privileges and Defenses

Georgia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges. The CMLP has not identified any cases in Georgia concerning the wire service defense. It is unclear whether Georgia courts recognize the neutral reportage privilege.

Most of the privileges and defenses to defamation in Georgia can be defeated if the plaintiff proves that the defendant acted with actual malice.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

Fair and accurate reports of legislative and court proceedings are among the privileged communications protected by statute in Georgia. See Ga. Code Ann. §51-5-7(5), (6). This privilege also extends to fair, accurate, and impartial reports about administrative agency proceedings. Morton v. Stewart, 266 S.E.2d 230, 233 (Ga. Ct. App. 1980). Georgia courts have generally, but not universally, held that the fair report privilege is qualified and can be defeated by proof of actual malice. Ga. Code Ann. §51-5-7(8) also provides a qualified privilege for truthful reports of information received from arresting officers or police authorities.

Neutral Reportage Privilege

Georgia courts have mentioned the "neutral reportage privilege" a handful of times, but they sometimes appear to confuse it with the fair report privilege and the statutory privilege for reporting information received from arresting officers or police authorities. At other times, Georgia courts use the term "neutral reportage" to describe whether a report is "fair and honest" for purposes of the fair report privilege. Because of this confusion, it is difficult to say whether Georgia recognizes the privilege as it is usually understood.

Wire Service Defense

The CMLP has not identified any cases in Georgia concerning the wire service defense. If you are aware of any Georgia cases, please notify us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. Ga. Code Ann. § 9-3-33.

Georgia has adopted the single publication rule. See Carroll City/County Hosp. Auth. v. Cox Enters., 256 S.E.2d 443, 444 (Ga. 1979). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

In McCandliss v. Cox Enterprises, 595 S.E.2d 856 (Ga. Ct. App. 2004), a Georgia appeals court held that the single publication rule applied to the posting of news articles on a newspaper's website. If other Georgia courts follow the McCandliss decision, the statute of limitations in Internet cases would begin to run from the date of first posting, absent a modification that triggers "republication."

Illinois Defamation Law

Note: This page covers information specific to Illinois. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Illinois law, the elements of a defamation claim are:

  1. the defendant made a false statement about the plaintiff;
  2. there was an unprivileged publication to a third party;
  3. fault by the defendant amounting to at least negligence; and
  4. the publication damaged the plaintiff.

The elements of a defamation claim in Illinois are for the most part similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Illinois recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Illinois, a statement that does any of the following things amounts to defamation per se:

  • accuses the plaintiff of committing a crime;
  • indicates that the plaintiff is infected with a loathsome communicable disease;
  • indicates that the plaintiff is unable to perform or lacks integrity in performing his or her employment duties;
  • attributes to the plaintiff a lack of ability or otherwise harms the plaintiff in his or her profession; or
  • accuses the plaintiff of engaging in adultery or fornication.

Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).

Actual Malice and Negligence

Illinois courts apply a unique "reasonable grounds" standard of negligence in defamation cases brought by  private figures. This standard requires that the defendant either knew the publication was false or believed the publication was true but "lacked reasonable grounds for that belief." Troman v. Wood, 62 Ill.2d 1984, 299 (Ill. 1975). Thus, the Illinois negligence test resembles a slightly more lenient "actual malice" test. See the general page on actual malice and negligence for details on the terminology and standards referenced here.

Privileges and Defenses

Illinois courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, substantial truth, and the opinion and fair comment privileges. Illinois has neither recognized nor rejected the wire service defense and the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. See Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825 (Ill. 2006).

Fair Report Privilege

In Illinois, the fair report privilege covers reports of official government proceedings and information contained in public records. This includes court proceedings and matters contained in court documents, as well as police reports, verbal statements by governmental officials in their official capacities, and things like marriage and divorce records, birth and death records, and property records. The privilege protects you if your report fairly and accurately reflects the official information. As noted, the privilege is absolute, and cannot be defeated by a finding of malice or actual malice.

Neutral Reportage Privilege

The Supreme Court of Illinois has not recognized or rejected the neutral reportage privilege. Lower courts in Illinois do not agree on whether Illinois law recognizes the privilege. Therefore, its status remains uncertain.

Wire Service Defense

Illinois has only addressed the wire service defense in one case, Kapetanovic v. Stephen J. Productions, Inc., 30 Media L. Rep. 1786 (N.D.Ill. 2002), but that case is not binding legal authority because it involved a federal court. It is worth noting, however, that the Illinois federal court recognized and applied the defense in that case and Illinois state courts may decide to follow suit.

Statute of Limitations for Defamation

The statute of limitations for defamation in Illinois is one (1) year. See 735 ILCS 5/13-201

Illinois has adopted the single publication rule by statute. See 740 ILCS 165/1. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Illinois that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Illinois cases that acknowledge the single publication rule in the Internet context, please notify us.

Indiana Defamation Law

Note: This page covers information specific to Indiana. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

Under Indiana law, the elements of defamation claim are:

  1. a communication with defamatory imputation;
  2. malice;
  3. publication; and
  4. damages.

Bochenek v. Walgreen Co., 18 F.Supp.2d 965 (N.D.Ind. 1998).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Indiana are for the most part similar to the elements listed in the general Defamation section, with the following exceptions.

Defamation Per Se

In Indiana, a communication constitutes defamation per se if it imputes:

  • criminal conduct;
  • a loathsome disease;
  • misconduct in a person's profession or occupation; or
  • sexual misconduct.

Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App.2001). In an Indiana claim involving defamation per se, the plaintiff does not need to prove actual damages.

Private Figures

Indiana applies the "actual malice" standard of fault in defamation claims involving private figures if the disputed statements are newsworthy or involve matters of public concern. Journal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 130 (Ind. 2006). Most states apply a negligence standard in defamation claims involving public figures. See the general page on actual malice and negligence for details on this standard.

Privileges and Defenses

Indiana courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Indiana has not recognized or rejected the neutral reportage privilege and has not yet considered the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Neutral Reportage Privilege

Indiana has not explicitly recognized or rejected the neutral reportage privilege. The sole case law on the issue is a 7th Circuit decision that upheld an unpublished Indiana federal court judgment but declined to address the issue of neutral reportage. Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986). The federal trial court had recognized and applied the privilege, but the 7th Circuit affirmed on other grounds.

Wire Service Defense

It appears that no Indiana case has considered the wire service defense. If you are aware of any Indiana cases, please notify us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Indiana is two (2) years. See Indiana Code sec. 34-11-2-4.

Indiana is unusual in that its courts have held that the statute of limitations begins when the "damage" of the statement is "susceptible of ascertainment," rather than when the statement was published. Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.

Indiana has no case law on whether or not the single publication rule applies. If you are aware of any Indiana cases that acknowledge the single publication rule in the Internet context, please notify us.  For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Massachusetts Defamation Law

Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

In Massachusetts, the elements of a defamation claim are:

  1. a false and defamatory communication
  2. of and concerning the plaintiff which is
  3. published or shown to a third party.

Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass 2007).  A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence.   These elements of a defamation claim in Massachusetts are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Massachusetts has abolished the separate category of defamation per se at least in part. Under state common law, any libel is actionable per se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974). This means that plaintiffs do not need to plead or prove economic losses in order to prevail on libel claims.

However, Massachusetts courts have continued to discuss defamation per se. It appears the state might still recognize libel per se when determining whether a statement "could damage the plaintiff's reputation in the community" -- which is part of the consideration of whether the statement is defamatory. Albright v. Morton, 321 F. Supp. 2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367 Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass statements that charge the plaintiff with a crime, that allege the plaintiff has certain diseases, or that may prejudice the plaintiff's profession or business. Morton, 321 F. Supp. at note 3.

It also appears that Massachusetts still recognizes defamation per se in cases involving slander rather than libel. Ravnikar v. Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to arise in an Internet-based defamation action because online defamation almost always involves libel law.

Public Officials

In Massachusetts, any elected official holding public office is considered a public official for the purposes of defamation. Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means that any elected official in public office -- no matter how small the scope of her duties -- must prove that the defendant acted with actual malice in order to prevail on a defamation claim. The Lane court found that an elected town representative was a public official though the representative's duties were limited to meeting with the rest of a 104-member committee once a year to vote on various town issues.

Criminal Libel

Massachusetts recognizes criminal libel as a common law offense, though it does not have a criminal libel statute. Commonwealth v. Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be any Massachusetts criminal libel case law since the Supreme Court's 1966 decision in Ashton v. Kentucky, which invalidated the Kentucky common law crime of criminal libel as unconstitutionally vague and overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the Court's decision in Ashton, many states have repealed their criminal libel statutes or ceased to recognize the common law crime.

Privileges and Defenses

Massachusetts courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, the wire service defense, and the fair report privilege. Massachusetts has neither recognized nor rejected the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Substantial Truth

As a general matter, if a statement is substantially true, it cannot be actionable as defamation. See Milgroom v. News Group Boston, 412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however, "truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92. This potential limitation on the truth defense is unlikely to be constitutional and, indeed, Massachusetts courts have held that it does not apply to cases involving public-figure or public-official plaintiffs or cases brought against media defendants that deal with matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6 (1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134 (1998). No court has applied the statute in a case brought by a private plaintiff that involves issues not of public concern.

Neutral Reportage Privilege

Massachusetts has not recognized or rejected the neutral reportage privilege. Reilly v. Associated Press, 797 N.E.2d 1204 (Mass. App. Ct. 2003).

Statute of Limitations for Defamation

The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.

Massachusetts has adopted the single publication rule, defining publication as the time when a work is "first made widely available to the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288 (Mass. Super. Ct. 2004). The Abate court also explicitly extended the single publication rule to statements published on the Internet. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Michigan Defamation Law

Note: This page covers information specific to Michigan. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Michigan, the elements of a defamation claim are:

  1. a false and defamatory statement concerning the plaintiff;
  2. an unprivileged publication to a third party;
  3. fault amounting at least to negligence on the part of the publisher; and
  4. either actionability of the statement irrespective of special harm (defamation per se) or the existence of actual harm caused by the publication.

These elements of a defamation claim in Michigan are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Defamation per se exists if the communication is false and imputes a criminal offense or lack of chastity. Unlike in many other states, defamation regarding one's business or profession is not defamation per se in Michigan. See George v. Senate Democratic Fund, 2005 WL 102717 (Mich. Ct. App. 2005); Pierson v. Ahern, 2005 WL 1685103 (Mich. Ct. App. 2005).

Public Figures and Officials

Under Michigan law, a public official is a person whose position is of such apparent importance that the public has an independent interest in his qualifications or performance "beyond the general public interest in the qualification and performance of government employees." Peterfish v. Frantz, 168 Mich. App. 43, 52 (1988). A plaintiff must prove actual malice to recover for any subject matter that touches upon the official's fitness for office. A public figure is "a person who by his accomplishments, fame or mode of living, or by adopting a calling which gives the public a legitimate interest in his activities, affairs, and character, has become a public personage." Arber v. Sahlin, 382 Mich. 300, 305 n.4 (1969).

In Michigan, the following persons have been considered public officials or figures:

  • Law enforcement officials including a sheriff, a deputy sheriff, a university police officer, a bailiff, chief probation officer, the chief of the criminal section of the city law department;

  • Municipal figures including a county treasurer, a county engineer, a municipal law director, a city council member, members of the Board of Education; and

  • Owners and executives of prominent businesses.

Limited-Purpose Public Figure

A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy. However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. A court will look to the nature and extent of the individual's participation in the controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328 (Mich. App. 1991).

In Michigan, the following persons have been considered limited-purpose public figures:

  • The owner of a private art school was a public figure for the limited range of issues relating to the art school, its administration, and its problems;

  • A wife of a public official who injected herself into a public controversy made her a public figure for purpose of the controversy bolstered by the fact she was married to a public figure.

  • A retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at School Board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the Board.
See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Michigan courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, opinion and fair comment privileges, wire service defense and the fair report privilege. Michigan has declined to adopt the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

In Michigan, the fair report privilege has been codified in Mich. Comp. Law § 600.2911(3) (1961), which provides an absolute privilege against liability for fair and true reports of public and official proceedings. A report is fair and true if the "gist" is substantially true.

Neutral Reportage Privilege

The neutral reportage privilege is not recognized in Michigan. The Michigan Court of Appeals declined to adopt the privilege stating "the press is adequately protected by the burden of proof" that the publication of a statement was made with actual malice, that is, knowing that it is false or acting with a reckless disregard for the statement's truth or falsity. Postill v. Booth Newspapers, Inc., 325 N.W.2d 511, 518 (Mich. Ct. App. 1982). Michigan's Supreme Court has made only passing reference to neutral reportage, referring to the doctrine as "undefined." Rouch v. Enquirer & News, 487 N.W.2d 205, 208 n.3 (Mich. 1992).

Wire Service Defense

Michigan recognizes the wire service defense. See Howe v. Detroit Free Press, Inc., 555 N.W.2d 738 (Mich. App. Ct. 1996). The court in Howe offers a nice definition of the wire service defense in Michigan: "when a local media organization receives a wire service release, it has a duty to read the release to ensure that the face of the story itself does not contain any inconsistencies. The local media organization also has a duty to refrain from publishing the news story if the news organization knows the story is false or if the release itself contains unexplained inconsistencies. The local media organization does not have a duty, however, to independently verify the accuracy of the wire service release." Howe, 555 N.W.2d at 740-41.

Statute of Limitations for Defamation

The statute of limitations for defamation in Michigan is one (1) year. Mich. Comp. Law § 600.5805(7) (1961).

Each publication typically amounts to a separate cause of action in Michigan. See Grist v. Upjohn, 2 Mich. App. 72 (1965); Celley v. Stevens, 2004 WL 134000 (Mich. Ct. App. 2004). Michigan courts have not decided whether the single publication rule applies in Michigan. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

Missouri Defamation Law

Note: This page covers information specific to Missouri. For general information concerning defamation, see the Defamation section of this guide. 

Elements of Defamation

The elements of defamation in Missouri are:
1. publication
2. of a defamatory statement
3. that identifies the plaintiff
4. that is false
5. that is published with the requisite degree of fault, and
6. damages the plaintiff's reputation

Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc). 

The publication requirement is simply the communication of defamatory matter to a third person. An exception to the publication requirement exists for slander actions in Missouri where a person who utters defamatory matters intends, or has reason to suppose, that in the ordinary course of events the matter will come to knowledge of some third person. Mauzy v. Mex. Sch. Dist., 878 F. Supp. 153, 157 (E.D. Mo. 1995), citing Neighbors v. Kirksville College, 694 S.W.2d 822, 824 (Mo. Ct. App. 1985). One who republishes defamatory facts is liable for that publication. Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953). There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party - not you or your employee or someone acting under your direction - posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

These elements of a defamation claim in Missouri are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se/Per Quod

The Missouri Supreme Court case of Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc) eliminates the defamation per se/per quod distinction. In that case, the court abandoned the classifications of defamation per se and per quod, holding that "plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases." Id. at 313. 

Defamatory Meaning 

By statute, it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. Mo. Rev. Stat. § 537.110 (2011).

In 1993, a false allegation of homosexuality was held to be defamatory. Nazeri at 312. It is not clear whether this would still be actionable now.

In order to find that a publication is defamatory, it must "be unequivocally so" and the words "should be construed in their most innocent sense." Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966). In Ampleman v. Schweppe, 972 S.W.2d 329 (Mo. Ct. App. 1998), the court stated that "if a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law." Id. at 333.

Of and Concerning the Plaintiff

Even if the plaintiff is readily identifiable in a particular publication, the plaintiff cannot sue for defamation unless the libelous portion of the publication is directed at him. May v. Greater Kansas City Dental, 863 S.W.2d 941, 945 (Mo. Ct. App. 1993).  

Actual Malice

In order to recover for defamation, a public official/figure is required to show that the defendant acted with actual malice. Actual malice requires a showing that the libelous statements were published with actual knowledge of falsity or in reckless disregard as to whether the statement as true or not. The Missouri Supreme Court has equated recklessness with disregard of the truth with subjective awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Glover v. Herald Co. 549 S.W.2d 858, 862 (Mo. 1977) (en banc).

Application of the actual malice standard in defamation cases in Missouri is not limited to statements regarding public officials' performance of official acts. A public figure's private conduct is, in some cases, a matter of public concern. Westhouse v. Biondo, 990 S.W.2d 68 (Mo. Ct. App. 1999).

Missouri cases have applied constitutional fault principles to statements made by non-media defendants, as well as those made by media defendants. Ramacciotti v. Zinn, 550 S.W.2d 217, 224 (Mo. Ct. App. 1987); McQuoid v. Springfield Newspapers, Inc., 502 F. Supp 1050, 1054 n.3 (W.D. Mo. 1980). 

See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Private Figure Standard

In Missouri, a private figure must show libelous statements were published by a defendant "at fault." The Missouri Supreme Court has interpreted the U.S. Supreme Court's ruling in Gertz v. Robert Welch, Inc., as stating that the requisite degree of fault in a private figure defamation case is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W. 3d 62, 70 (Mo. 2000) (en banc). 

Damages 

In a ruling rejecting the distinction between defamation per se and per quod (see above), the Missouri Supreme Court seems to have abandoned the doctrine of presumed damages. Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc). "By allowing presumed damages for certain words but precluding actual damages for other words without the additional proof of special damages, we believe this rule of the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI [i.e., the "Missouri Approved Instructions," the standard jury instructions used in Missouri courts] 23.01(1) and 23.01(2)." Nazeri at 313. See also Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003); Bauer v. Ribaudo, 975 S.W.2d 180, 182-83 (Mo. Ct. App. 1997).  

Recent Missouri legislation says that punitive damages in any tort case may not exceed $500,000 or five times the net amount of any judgement awarded to the plaintiff against the defendant, whichever is greater. Mo. Rev. Stat. § 510.265 (2011). 

The Missouri Supreme Court has held that a defamation plaintiff must prove impairment to reputation in order to recover any damages for defamation and that emotional distress alone will not suffice. Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003). 

Other Issues

Missouri has no criminal libel statute. 

Privileges and Defenses

Missouri courts recognize a number of privileges and defenses in the context of defamation cases, including substantial truth, the wire service defense, the fair reportage privilege, and opinion and fair comment privileges.

Missouri has not adopted the neutral reportage doctrine officially, although some cases show some recognition of a more limited privilege. Englezos v. Newspress & Gazette Co. 981 S.W.2d 25, 32 (Mo. Ct. App. 1998). The Eighth Circuit has suggested adherence to the neutral reportage doctrine. Price v. Viking Penguin Inc., 881 F.2d 1426, 1434, 1444 (8th Cir. 1989).

Substantial Truth

At common law, truth was considered a complete defense to libel (i.e., the defendant would have the burden to prove truth). Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953); Bartulica v. Pasculdo, 411 F. Supp 392, 397 (W.D. Mo. 1976).

Now falsity must be proven by the plaintiff, at least in cases where the defendant is a member of the media. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). "Under the controlling constiutional standards, public officials, public figures and private persons using media defendants [for libel] must establish that the defendant published a false statement of fact." Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980). 

Slight inaccuracies of expression are immaterial if the defamatory charge is true in substance. Brown v. Biggs, 569 S.W.2d 760, 762 (Mo. Ct. App. 1978).

Wire Service Defense

Missouri recognizes that a newspaper has the right to reply upon and to republish information obtained from "reputable and properly-regarded-as reliable news services" where (1) the matters republished are of public significance and occur many miles away and (2) the reporter did not act with actual malice. Walker v. Pulitzer Publ'g Co., 271 F.Supp. 364 (E.D. Mo. 1967), aff'd, 394 F.2d 800 (8th Cir. 1968). 

Fair Reportage Privilege

Missouri has adopted this privilege in the exact language provided in the Restatement of Torts (Second) § 611:

The publication of defamatory matter concerning another in a report or an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

"Actual malice" is irrelevant under the Section 611 privilege. The privilege fails only when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broad. Co., 706 S.W.2d 508, 511 (Mo. Ct. App. 1986).

Opinion

The Missouri Supreme Court, considering the U.S. Supreme Court's holding in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),rejected a blanket defense for protected opinion and established instead the following test: 

"The test to be applied to ostensible 'opinion' is whether a reasonable factfinder could conclude that the statement implies an assertion of objective fact. ...The issue of falsity relates to the defamatory facts implied by a statement -- in other words, whether the underlying statement about the plaintiff is demonstrably false... But neither 'imaginative expression' nor 'rhetorical hyperbole' is actionable as defamation."

Nazeri at 314 (citations omitted). Nevertheless, a Missouri appellate court has since held that generally any statement preceded by a phrase such as "it is my position" or "it is my belief" or other cautionary phrases are, as a matter of law, opinion. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). "Put plainly, it is impossible to interpret statements preceded by such cautionary lanugage as positing a verifiable proposition, and verifiability is the crux of the fact/opinion distinction in defamation law."  Pape at 380-81. The Pape court also held that "[a] statement must be verifiable at the time it is issued in order to be one of fact." Id. at 381.

In State ex. rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005), the Missouri Court of Appeals, while recognizing that the U.S. Supreme Court "has rejected the notion that there is a wholesale defamation exception for anything that might be labeled opinion" as a matter of federal constitutional law, held that "a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff's conduct and used pejorative statements or vituperative language to express this disapproval. ... 'Courts should also examine the statements themselves to determine whether they are too imprecise.'" Id. at 155, quoting Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).

See the general page on fair comment and opinion for details on the standards and terminology mentioned in this subsection.

Other Privileges

Missouri follows the "witness immunity" rule that witness statements made in litigation are absolutely privileged from defamation actions. Mershon v. Beasley, 994 F.2d 449, 454 (8th Cir. 1993).

There is also an "intra-corporate immunity" rule in Missouri where "communications between officers or employees of a corporation in the regular course of business, or between different offices of the same corporation" are not publications for defamation purposes. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo. 1963); see also Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo. Ct. App. 1990). Communication by a corporation's officers or supervisors to non-supervisory employees constitute a publication for purposes of a defamation. Snodgrass v. Headco Indus. Inc., 640 S.W.2d 147 (Mo. Ct. App. 1982). However the intra-corporate immunity rule does not appear to be applicable to communications outside of the corporate context, for example partnerships.

 

Statute of Limitations for Defamation

An action for libel or slander that is first published in Missouri must be commenced within two years. Mo. Rev. State § 516.140 (2011).

New Jersey Defamation Law

Note: This page covers information specific to New Jersey. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In New Jersey, the elements of a defamation claim are:

  1. a false statement about the plaintiff;
  2. communication of the statement to a third party;
  3. fault of the defendant amounting at least to negligence; and
  4. damages suffered by the plaintiff.

See DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004). These elements of a defamation claim in New Jersey are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New Jersey follows the U.S. Supreme Court's decision in Rosenblatt v. Baer, 383 U.S. 75 (1966), in determining who is a public official for purposes of defamation law. Under this test, the public official designation applies to "those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Costello v. Ocean County Observer, 643 A.2d 1012, 1021 (N.J. 1994) (quoting Baer). Reading this test expansively, New Jersey courts have consistently held that police officers are public officials. Other examples of public officials include a former school district athletic director, a tax assessor, a building inspector, an incumbent mayor.

New Jersey courts have a two-part test for deciding who is a limited-purpose public figure. First, the defamatory statement must involve a public controversy, namely a real dispute with an outcome that “affects the general public or some segment of it.” See McDowell v. Paiewonsky, 769 F.2d 942, 948 (3d Cir. 1985). Second, the court must consider “the nature and extent of plaintiff's involvement in that controversy.” See McDowell, 769 F.2d at 948. The following individuals, among others, have been held to be limited-purpose public figures in New Jersey:

  • A candidate for a condominium board of directors, because his candidacy thrust him into the public eye, see Gulrajaney v. Petricha, 885 A.2d 496, 505 (N.J. Super. Ct. App. Div. 2005);
  • A lawyer representing the New Jersey School Boards Association, at a time when the association's insurance problems generated widespread and justifiable media attention, see Schwartz v. Worrall Publ'ns, 610 A.2d 425, 428-29 (N.J. Super. Ct. App. Div. 1992); and
  • Land use applicants, because their construction project were fairly and reasonably the subject of public interest, see LoBiondo v. Schwartz, 733 A.2d 516, 526 (N.J. Super. Ct. App. Div. 1999).

Actual Malice and Negligence

When a private figure plaintiff sues for defamation over statements of purely private concern (i.e., not related to a matter of legitimate public concern), New Jersey courts require the plaintiff to show that the defendant was at least negligent. In cases involving matters of legitimate public concern, the plaintiff must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. Public officials, all-purpose public figures, and limited-purpose public figures also must prove actual malice. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

New Jersey courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges.

In addition, New Jersey statutes recognize a privilege for cable television broadcasters who complying with their obligations under any State or Federal law, regulation, or policy requiring that broadcast services be made available to members of the public. See N.J. Stat. Ann. § 48:5A-50.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

The fair report privilege protects republishing “reports of defamatory statements made in judicial and other official proceedings,” in the interest that information from official proceedings be made available to the public. Costello v. Ocean County Observer, 643 A.2d 1012, 1018 (N.J. 1994). The report need not be “exact in every immaterial detail”, only “substantially correct.” However, a publisher who omits exculpatory language from the official report and thereby conveys an erroneous impression will lose the privilege.

For example, the privilege will cover the publication of official statements regarding police investigations, issued by police department heads and county prosecutors, unless the plaintiff can prove actual malice in the publication. See N.J. Stat. Ann. § 2A:43-1.

Neutral Reportage Privilege

New Jersey courts do not recognize a neutral reportage privilege. However, the extensive protections available under the New Jersey fair report privilege are analogous to a neutral reportage privilege. See Costello, 643 A.2d at 1028 (N.J. 1994) (O'Hern, J., concurring).

Wire Service Defense

The CMLP has not identified any cases in New Jersey concerning the wire service defense.

Statute of Limitations for Defamation

New Jersey has a one (1) year statute of limitations for defamation. See N.J.S.A. 2A:14-3.

New Jersey courts have adopted the single publication rule. Barres v. Holt, Rinehart & Winston, Inc., 378 A.2d 1148, 1151 (N.J. 1977). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

A New Jersey Superior Court has held that the single publication rule applies to Internet publications. See Churchill v. State, 876 A.2d 311, 319 (N.J. Super. Ct. App .Div. 2005). If other New Jersey courts follow the Churchill case, the statute of limitations should run from the date of first posting, unless more than merely technical changes are made to the website, triggering “republication.”

New York Defamation Law

Note: This page covers information specific to New York. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under New York law, the elements of a defamation claim are:

  1. a false statement;
  2. published to a third party without privilege or authorization;
  3. with fault amounting to at least negligence;
  4. that caused special harm or defamation per se.

See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept. 1999). These elements of a defamation claim in New York are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New York courts rely heavily on the "vortex" notion of a limited-purpose public figure. See James v. Gannett Co., Inc., 40 N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category of public figures is that the publicized person has taken an affirmative step to attract public attention."). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974). In New York, such figures have included candidates for public office, restaurants (for the purpose of food reviews), and religious groups.

Actual Malice and Negligence

When the plaintiff in a defamation lawsuit is a private figure and the allegedly defamatory statements relate to a matter of legitimate public concern, the plaintiff must prove that the defendant acted "in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties." Chapadeau v. Utica Observer-Dispatch, 38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar than negligence but lower than actual malice, focuses on an objective evaluation of the defendant's actions rather than looking at the defendant's state of mind at the time of publication.

At least one court has found that the same standard of fault applies to citizen or non-media defendants where the allegedly defamatory statements relate to a matter of legitimate public concern. See Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d Dep't 1985), aff'd 67 N.Y.2d 778 (N.Y. 1986) (no liability for letter to the editor unless writer was "grossly irresponsible").

In cases brought by private figure plaintiffs involving statements not related to a matter of legitimate public concern, New York courts apply a negligence standard.

To determine whether statements relate to a matter of legitimate public concern, New York courts view the allegedly defamatory statements in context of the writing as a whole. They ask whether the matter can be "fairly considered as relating to any matter of political, social, or other concern of the community" and distinguish this broad category of newsworthy matters from "mere gossip and prurient interest." Overall, the test is deferential to the reporter's judgment about whether a matter is of legitimate public concern. See Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).

Privileges and Defenses

New York courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, substantial truth, and the wire service defense. New York has not explicitly recognized or rejected the neutral reportage privilege.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice.

Fair Report Privilege

New York has codified the fair report privilege into law. N.Y. Civ. Rights § 74. Under the statute, speakers cannot be held liable for giving a "fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." A report is "fair and true" if it is substantially accurate.

Wire Service Defense

New York recognizes a privilege that is similar to the wire service defense but explicitly extends protection to content originating from other sources in addition to wire services. Jewell v. NYP Holdings, Inc., 23 F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will not hold republishers liable for reproducing defamatory content unless the republisher had or should have had "substantial reasons" to question the content's accuracy or the original speaker's good faith and reporting practices. See Karaduman v. Newsday, Inc., 51 N.Y.2d 531 (N.Y. 1980). Because courts applying these principles have dealt exclusively with traditional media entities such as newspapers and book publishers -- both as publishers and republishers -- it is not clear whether this privilege would apply to online speakers such as bloggers and citizen media websites.

Neutral Reportage Privilege

The status of the neutral reportage privilege in New York is not settled. The New York Court of Appeals has neither recognized nor rejected the privilege, and the lower courts disagree on whether it is part of New York law.

Statute of Limitations for Defamation

The statute of limitations for defamation in New York in one (1) year. See N.Y. C.P.L.R. 215(3).

New York has adopted the single publication rule. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119 (1948). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The single publication rule applies to the Internet in New York, with the statute of limitations running from the time the defamatory content first appears online. "Republication" of the allegedly defamatory content will restart the statute of limitations. A "republication" occurs upon "a separate aggregate publication from the original, on a different occasion, which is not merely 'a delayed circulation of the original edition.'" Firth v. State, 775 N.E.2d 463, 466 (N.Y. 2002). The New York Court of appeals has indicated that altering the allegedly defamatory content may trigger republication, and a lower court has held that moving web content to a different web address triggered republication. See Firth v. State, 306 A.D.2d 666 (N.Y. App. Div. 2003).

North Carolina Defamation Law

Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in North Carolina are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

North Carolina has a broad definition of libel per se. This term refers to statements so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In North Carolina, a statement that does any of the following things amounts to libel per se:

  • charges that a person has committed an infamous crime;
  • charges a person with having an infectious disease;
  • tends to impeach a person in that person's trade or profession; or
  • otherwise tends to subject one to ridicule, contempt, or disgrace.

This last category of libel per se is quite broad and is not recognized by most other states.

Actual Malice and Negligence

In North Carolina, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

North Carolina courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. The status of the wire service defense and the the neutral reportage privilege is unsettled.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act. It is not clear whether actual malice defeats the fair report privilege in North Carolina.

Fair Report Privilege

In North Carolina, the fair report privilege protects accurate reports of government proceedings and public records.  Among other things, the privilege applies to court proceedings and information contained in court documents. It also extends to reports of arrests and the charges upon which the arrests were based. See LaComb v. Jacksonville Daily News, 543 S.E.2d 219, 221 (N.C. Ct. App. 2001).  To take advantage of the privilege, your report must be a "substantially accurate acount." It is not clear whether a plaintiff can defeat the fair report privilege by proving that the defendant acted with actual malice.

Neutral Reportage Privilege

The CMLP located no North Carolina cases addressing the neutral reportage privilege. If you know of any cases, please contact us.

Wire Service Defense

One North Carolina appeals court has recognized the wire service defense, but did not elaborate on its scope. See McKinney v. Avery Journal, Inc., 393 S.E.2d 295 (N.C. Ct. App. 1990).

Statute of Limitations for Defamation

The statue of limitations for defamation in North Carolina is one (1) year. See N.C. Gen. Stat. § 1-54.

The CMLP has identified no North Carolina cases addressing whether the state follows the single publication rule, either online or off. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. If you are aware of any North Carolina cases that acknowledge the single publication rule in the Internet context, please notify us.

Ohio Defamation Law

Note: This page covers information specific to Ohio. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in Ohio are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

Ohio recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. Ohio has a broad definition of defamation per se. In contrast to most states, which limit defamation per se to three or four specific categories of statements, Ohio defines the term as any statement that "reflects upon the character of [the plaintiff] by bringing him into ridicule, hatred, or contempt, or affects him injuriously in his trade or profession.” Becker v. Toulmin, 138 N.E.2d 391, 395 (Ohio 1956). A statement can constitute defamation per se only if it conveys its negative meaning directly, not by innuendo or implication.

Public and Private Figures

A public official is a government employee or official whose position has such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualifications and performance of all government employees. See Scott v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986). Ohio courts have found law enforcement officials to be public officials, including a sheriff, a deputy sheriff, a university police officer, a bailiff, a chief probation officer, and the chief of the criminal section of a city law department. Other examples of public officials include a county treasurer, a county engineer, a municipal law director, a city council member, and members of the Board of Education.

In defining all-purpose and limited-purpose public figures, Ohio courts follow Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). All-purpose public figures are those who have achieved pervasive fame and influence. Examples include celebrities, professional athletes, and similarly famous people.

A limited-purpose public figure is someone who injects himself or herself into a particular public controversy. The determination of whether a particular individual qualifies as a limited-purpose public figure depends on the (1) plaintiff's access to the media; and (2) the extent to which the plaintiff, by virtue of his or her position in the community or involvement in a matter of public concern, can be said to invite public comment or attention. Examples of individuals and organizations deemed limited-purpose public figures by Ohio courts include:

  • the owner of a private art school (for purposes of discussing its administration);
  • a retired schoolteacher who worked for the public school system for 30 years, regularly attended and voiced concerns at school board meetings, and had his own talk show entitled "One Man's Opinion" where he discussed matters relating to the board (for purposes of discussing his statements and conduct at a board meeting); and
  • a restaurant and its owner (for purposes of review of the restaurant).

Actual Malice and Negligence

In defamation suits brought by private figure plaintiffs, Ohio courts require a plaintiff to prove by clear and convincing evidence that the defendant "failed to act reasonably in attempting to discover the truth or falsity or defamatory character of the publication." Landsdowne v. Beacon Journal Publ'g, 512 N.E.2d 979, 984 (Ohio 1987). The Ohio test is similar to an ordinary negligence standard, but the "clear and convincing evidence" standard requires the plaintiff to put forward strong evidence of negligence.

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Privileges and Defenses

Ohio courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

The Ohio Supreme Court has declined to recognize the neutral reportage privilege. The CMLP could identify no Ohio cases concerning the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party -– not you or your employee or someone acting under your direction –- posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

Ohio recognizes the fair report privilege, which is codified in two statutes, Ohio Rev. Code §§ 2317.04 and 2317.05.

  • Ohio Rev. Code § 2317.04 provides a privilege to accurate reports of state and local legislative and executive proceedings, as well reports reproducing the contents of any bill, ordinance, report, resolution, bulletin, notice, petition, or other document presented, filed, or issued in such a proceeding. A plaintiff can defeat this privilege by showing that the defendant acted with actual malice.
  • Ohio Rev. Code § 2317.05 provides a privilege to accurate reports of the return of any indictment, the issuance of a warrant, the arrest of any person accused of a crime, and the filing of any affidavit, pleading, or other document in a civil or criminal court case, as well as fair an impartial reports of the contents of these documents. A plaintiff can defeat this privilege by showing that the defendant (1) acted with actual malice, (2) failed to publish a reasonable written explanation or contradiction offered by the plaintiff, or (3) failed to publish, upon request of the plaintiff, the subsequent determination the lawsuit or case.

To take advantage of the fair report privilege, you do not need to quote the official record verbatim, but it must be a substantially accurate report, which means the report conveys the essence of the official record.

Neutral Reportage Privilege

The Ohio Supreme Court has declined to recognize the neutral reportage privilege. See Young v. Morning Journal, 669 N.E.2d 1136, 1138 (Ohio 1996).

Wire Service Defense

The CMLP could not identify any cases concerning the wire service defense in Ohio. If you are aware of any cases, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Ohio is one (1) year. See Ohio Rev. Code § 2305.11 (1981).

The status of the single publication rule in Ohio is not settled. For a definition of the "single publication rule," see the Statute of Limitations for Defamation page.

Pennsylvania Defamation Law

Note: This page covers information specific to Pennsylvania. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Although Pennsylvania courts invoke a complicated statutory definition found in 42 Pa. Cons. Stat. §§ 8341-8345 (see especially § 8343), in practice the elements of a defamation claim are similar to the elements discussed in the general Defamation Law section. However, Pennsylvania law has some characteristics that differ slightly from the general section's description of defamation law:

Public and Private Figures

Pennsylvania defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Pennsylvania courts include:

  • police officers;
  • public high school teachers and coaches;
  • a school board director;
  • a candidate for judge;
  • a celebrity with access to the media; and
  • a union official.

Some examples of individuals deemed to be limited-purpose public figures by Pennsylvania courts include:

  • a locally renowned, Philadelphia-based singer who posed for as a centerfold and was extensively interviewed in an accompanying article in Playboy magazine;
  • a licensed architect and civil engineer who participated in numerous public building projects that had been the subject of public controversy; and
  • the president of an art foundation at the time the foundation's paintings went on a widely publicized international art exhibition tour.

Some examples of individuals deemed to be private figures by Pennsylvania courts include:

  • a person who allegedly misrepresented himself as a member of the board of a non-profit organization;
  • a dentist who received public reimbursement from state funds for dental work performed on lower-income patients; and
  • an individual planning to host of a private party when a neighbor called a newspaper to complain about the party.

Actual Malice and Negligence

In Pennsylvania, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Pennsylvania courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

Pennsylvania does not recognize the the neutral reportage privilege. The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

The Fair Report Privilege

Pennsylvania recognizes the fair report privilege. The privilege applies to reports and summaries of information contained in government reports or discussed in government proceedings. This includes court proceedings, court records, and open meetings. It also applies to government press releases, including police press releases.

The privilege applies to "fair and accurate" accounts of the underlying documents or proceedings. A report is fair and accurate if it is "substantially accurate." A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

Neutral Reportage Privilege

The Pennsylvania Supreme Court has expressly rejected the neutral reportage privilege. See Norton v. Glenn, 860 A.2d 48 (Pa. 2004).

Wire Service Defense

The Pennsylvania Supreme Court has neither recognized or rejected the wire service defense, but lower courts have consistently refused to recognize this defense.

Statute of Limitations for Defamation

Pennsylvania has a one (1) year statute of limitations for defamation. See 42 Pa. Cons. Stat. § 5523(1).

The state has adopted the single publication rule. See 42 Pa. Cons. Stat. § 8341. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Pennsylvania that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Pennsylvania cases that acknowledge the single publication rule in the Internet context, please notify us.

Texas Defamation Law

Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Texas, the elements of a defamation claim are

  1. publication of a statement;
  2. that was defamatory concerning the plaintiff;
  3. with the requisite degree of fault.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). The elements of a defamation claim are for the most part similar to the elements discussed in the general Defamation Law section, with the following clarifications:

Public and Private Figures

Texas law defines when a plaintiff is a public official, all-purpose public figure, and limited-purpose public figure in more-or-less the way described in the general Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Texas courts include:

  • law enforcement officers including a county sheriff, a deputy sheriff, and an undercover narcotics agent with the Texas Department of Public Safety;

  • a Texas Child Protective Services specialist in charge of investigating cases of alleged child abuse and neglect and providing services for the children involved;

  • an assistant regional administrator of a branch office of the United States Securities and Exchange Commission; and

  • a court-appointed child psychologist in a child custody case who had the authority to determine visitation rights.

Some examples of individuals deemed to be limited-purpose public figures by Texas courts include:

  • a candidate for city counsel, because he thrust himself into the middle of a public controversy;

  • a former special counsel for a court of inquiry investigating alleged irregularities in county fund management;

  • a zoologist who actively participated in a controversy involving his work with kinkajous by appearing on television, giving interviews to magazines, and orchestrating a letter-writing campaign;

  • a broadcast news reporter who hosted a segment that regularly appeared on television;

  • an abortion clinic protester who regularly appeared on a public street near the entrance to the clinic;

  • a group of hackers called Legion of Doom who sought publicity in a controversy over computer security.

Actual Malice and Negligence

In Texas, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statement. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statement was false or recklessly disregarding its falsity. See the general page on actual malice and negligence for details on these standards.

Privileges and Defenses

Texas courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Although the Texas Supreme Court has not ruled on the issue, many lower courts in Texas have recognized a privilege similar to the neutral reportage privilege.

The CMLP has not identified any cases in Texas that recognize the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

Fair Report Privilege

In Texas, the fair report privilege protects a "fair, true, and impartial account" of various official proceedings and meetings, including:

  • court proceedings, including reports of the contents of pleadings filed with the court;
  • executive or legislative proceedings, including proceedings of legislative committees;
  • proceedings before a managing board of an educational or charity institution supported from public funds;
  • proceedings of the governing body of a city or town, of a county commissioners court, or of a public school board; and
  • public meetings on matters of public concern.

One court has applied the fair report privilege to reporting based on a police department press release. See Freedom Commc'n v. Sotelo, 2006 WL 1644602 (Tex. App. June 15, 2006).

A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

Neutral Reportage Privilege

The Texas Supreme Court has neither recognized or rejected the neutral reportage privilege. Many lower courts have recognized a similar privilege, without calling it "neutral reportage." Under the rule set forth in these cases, when the media reports on an accusation made by a third party, it can defend itself by showing that the accusation was in fact made and under investigation, rather than by showing that the underlying allegation was substantially true. See Dolcefino v. Turner, 987 S.W.2d 100, 109 (Tex. App. 1998). This privilege extends to investigations and accusations made by government and non-government actors and organizations. Proof of actual malice defeats this privilege.

Wire Service Defense

The CMLP has not identified any cases in Texas that recognize the wire service defense. If you are aware of any cases, please notify us.

Statute of Limitations for Defamation

Texas has a one (1) year statute of limitations for defamation. See Tex. Civ. Prac. & Rem. Code sec. 16.002.

Texas has adopted the single publication rule. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Texas state courts have not yet considered whether the single publication rule applies to postings on the Internet, but a federal appeals court applying Texas law recently adopted it in the Internet context. See Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137 (5th Cir. 2007). See also Hamad v. Center for the Study of Popular Culture, No. A-06-CA-285-SS (W.D. Tex. June 26, 2006) (adopting single pubication rule for Internet publications).

Virginia Defamation Law

Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

In Virginia, the elements of a defamation claim are

  1. publication of
  2. an actionable statement with
  3. the requisite fault on the part of the defendant.
To be “actionable,” the statement must be a false statement of fact that harms the plaintiff's reputation in the community or deters other persons from associating with him or her. These elements of a defamation claim in Virginia are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Virginia, a statement that does any of the following things amounts to defamation per se:

  • attributes to the plaintiff the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished;
  • indicates that the plaintiff is infected with a contagious disease;
  • attributes to the plaintiff unfitness to perform the duties of an office or employment of profit, or lack of integrity in the discharge of the duties of such an office or employment; or
  • hurts the plaintiff in his or her profession or trade.

Fleming v. Moore, 221 Va. 884, 899 (1981).

Public and Private Figures

The Virginia courts generally require a high level of public activity before a plaintiff becomes a limited-purpose public figure. The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). In Virginia, courts look at the following factors in determining whether a plaintiff is a limited-purpose public figure:

  1. whether the plaintiff had access to channels of effective communication;
  2. whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;
  3. whether the plaintiff sought to influence the resolution or outcome of the controversy;
  4. whether the controversy existed prior to the publication of the defamatory statements; and
  5. whether the plaintiff retained public figure status at the time of the alleged defamation.

Carr v. Forbes, Inc., 259 F.3d 273, 280 (2001) 

In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

  • the president of the two charitable organizations because the charities thrust themselves into the public eye through fund raising awareness efforts (Chapin v. Knight‑Ridder, Inc.);

  • a widely-published scientist and self-styled whistleblower who claimed the National Cancer Institute (NCI) had reversed its official position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);

  • A dolphin scientist who attempted to sell his dolphin technology to military and nonmilitary industries and who sought to influence the outcome of a public controversy through brochures and public statements (Fitzgerald v. Penthouse).

On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

  • a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);

  • a public school English teacher and short-term, acting department head whose students complained of her poor teaching performance to parents and the school principal (Richmond Newspapers v. Lipscomb);

  • a company engaged in archaeological research for both government and private entities that was not generally known to the community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).

Actual Malice and Negligence

Virginia courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent. In cases brought by private figures where substantial danger to reputation is not apparent, the actual malice standard applies. The Gazette, Inc. v. Harris, 325 S.E.2d 713, 725 (Va. 1985).

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.  

Privileges and Defenses

Virginia courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

CMLP has not identified any Virginia cases that recognize or refuse to recognize the neutral reportage privilege or the wire service defense. See Chapin v. Knight‑Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (stating that "[w]e have never adopted or rejected the ‘neutral reportage' privilege . . . .")

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Fair Report Privilege

In Virginia, the precise scope of the fair report privilege is not clear because all of the cases interpreting it have involved reports of court proceedings. The privilege covers reports of court proceedings, including matters stated in court documents, when the report is made in good faith and substantially accurate.

In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va. 1956), the Virginia Supreme Court stated that "[t]he publication of public records to which everyone has a right of access is privileged, if the publication is a fair and substantially correct statement of the transcript of the record." Because the case involved court proceedings not other government records, this statement would not necessarily bind later courts, but it is likely that Virginia courts would apply the privilege to government records open to the public. In that case, you would be privileged to report on information contained in marriage and divorce records, birth and death records, and property records, among other things, in addition to matters reflected in court records and proceedings.

A few federal courts interpreting Virginia law have applied the fair report privilege to "governmental actions," like the unofficial public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of reprimand leaked to the press, Reuber, 925 F.2d at 713.

Neutral Reportage Privilege

CMLP has not identified any cases in Virginia concerning the neutral reportage privilege.  If you are aware of any, please contact us

Wire Service Defense

CMLP has not identified any cases in Virginia concerning the wire service defense.  If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See Va. Code Ann. Sec. 8.01-247.1.

The Virginia Supreme Court has not ruled on whether the single publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. One federal appeals court applying Virginia law upheld application of the single publication rule, reasoning that a great majority of states now follow it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th Cir. 1984).

The CMLP could not locate any cases in Virginia that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Virginia cases that acknowledge the single publication rule in the Internet context, please notify us.

Washington Defamation Law

Note: This page covers information specific to Washington. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

According to Washington law, defamation claims have four elements:

  1. falsity;
  2. an unprivileged communication;
  3. fault on the part of the defendant; and
  4. damages.

These elements of a defamation claim in Washington are for the most part similar to the elements listed in the general Defamation Law section. However, in Washington, the elements of a defamation claim have two characteristics that differ slightly from the general section's description of defamation law.

Public and Private Figures

Washington courts rely heavily on the "vortex" notion of a limited-purpose public figure. See Camer v. Seattle Post-Intelligencer, 723 P.2d 863 (Wash. 1986). The definition of a limited-purpose public figure is covered in the general Actual Malice and Negligence section of this guide under the limited-purpose public figures discussion (scroll down to the topic heading "limited-purpose public figures"). The guide states a person becomes a limited-purpose public figure only if he voluntarily "draw[s] attention to himself" or uses his position in the controversy "as a fulcrum to create public discussion." Wolston v. Reader's Digest Association, 443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the vortex of [the] public issue [and] engage the public's attention in an attempt to influence its outcome." See Gertz v. Robert Welch, Inc., 418 U.S. 323, 352 (1974).

For example, a businessman who was involved in a commercial real-estate development project was considered a limited-purpose public figure in a defamation lawsuit against a newspaper which had printed articles about the development project that stated he was a tax felon. The court reasoned the businessman was a limited-purpose public figure because he “thrust himself into the vortex of [the] public issue” when he sent letters to residents of the real-estate development area telling the residents about the development project and advising them he would be updating them on its progress. Clardy v. Cowles Pub. Co., 912 P.2d 1078 (Wash. Ct. App. 1986).

Actual Malice and Negligence

Washington courts apply a negligence standard to defamation claims brought by private figures seeking compensatory damages when the allegedly defamatory statement makes substantial danger to reputation apparent.

Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection. 

Failure to investigate is not sufficient to prove actual malice. You should be aware that when you do investigate and facts come to light that either do not support or rebut your factual assertion, the jury may infer recklessness and thus find actual malice if you go ahead and publish the information and it turns out to be false and defamatory. See Herron v. KING Broad. Co., 776 P.2d 98, 106 (Wash. App. Ct. 1989).

Privileges and Defenses

Washington courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege.

The status of the neutral reportage privilege is unclear and CMLP has not identified any cases in Washington concerning the wire service defense.

There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

Fair Report Privilege

Washington recognizes the fair report privilege.  The privilege extends to accurate reports of court proceedings, as well as documents filed in those proceedings.  See Mark v. Seattle Times, 635 P.2d 1081 (Wash. 1981).  A plaintiff cannot defeat the fair report privilege by a showing othat the defendant acted with actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 P.3d 1178, 1188 (Wash. App. Ct. 2002).

Neutral Reportage Privilege

It is unclear whether the neutral reportage privilege exists in Washington.

The Washington Supreme Court noted the existence of the neutral reportage doctrine and that there was a "modern" trend towards rejecting it, but declined to rule on the privilege as neither party had raised the issue. Herron v. Tribune Publ'g Co., 736 P.2d 249, 260 (Wash. 1987).

However, at least one lower court recognized the neutral reportage privilege in a case involving a newspaper publishing defamatory allegations concerning a businessman made by anonymous union sources. Senear v. Daily Journal American, 8 Media L. Rep. 2489, 2492-93 (Wash. Super Ct. 1982).

Wire Service Defense

CMLP has not identified any cases in Washington concerning the wire service defense.  If you are aware of any cases, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation in Washington is two (2) years. See Wash. Rev. Code sec. 4.16.100.

The Washington Supreme Court has adopted the single publication rule. Herron v. KING Broad. Co., 746 P.2d 295 (Wash. 1987). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Washington that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Washington cases that acknowledge the single publication rule in the Internet context, please notify us.