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.
Note: This page covers information specific to Arizona. For general information concerning defamation, see the Defamation Law section of this guide.
In Arizona, the elements of a defamation claim are:
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:
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:
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:
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.
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 PrivilegeIn 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 CorrectionBy 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 BroadcastersA.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:
- 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.
- 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.
- 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.
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:
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.
Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.
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:
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:
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:
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:
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.
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:
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.
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.
Note: This page covers information specific to the District of Columbia. For general information concerning defamation, see the Defamation Law section of this guide.
According to District of Columbia law, defamation claims have four elements:
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 SeIn 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 FiguresFederal 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 NegligenceIn 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.
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).
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."
Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.
Under Florida law, the elements of a defamation claim are:
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 SeIn 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 FiguresFlorida 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 LibelUnlike 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 NegligenceIn 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.
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).
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.
Note: This page covers information specific to Georgia. For general information concerning defamation, see the Defamation Law section of this guide.
In Georgia, the elements of a defamation claim are:
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:
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.
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.
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."
Note: This page covers information specific to Illinois. For general information concerning defamation, see the Defamation Law section of this guide.
Under Illinois law, the elements of a defamation claim are:
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:
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.
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.
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.
Note: This page covers information specific to Indiana. For general information concerning defamation, see the Defamation section of this guide.
Under Indiana law, the elements of defamation claim are:
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:
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.
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.
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.
Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.
In Massachusetts, the elements of a defamation claim are:
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.
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).
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.
Note: This page covers information specific to Michigan. For general information concerning defamation, see the Defamation Law section of this guide.
In Michigan, the elements of a defamation claim are:
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:
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:
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.
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.
Note: This page covers information specific to Missouri. For general information concerning defamation, see the Defamation section of this guide.
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.
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 PrivilegesMissouri 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.
Note: This page covers information specific to New Jersey. For general information concerning defamation, see the Defamation Law section of this guide.
In New Jersey, the elements of a defamation claim are:
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:
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.
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.
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.”
Note: This page covers information specific to New York. For general information concerning defamation, see the Defamation Law section of this guide.
Under New York law, the elements of a defamation claim are:
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 FiguresNew 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 NegligenceWhen 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).
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.
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).
Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.
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:
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.
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).
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.
Note: This page covers information specific to Ohio. For general information concerning defamation, see the Defamation Law section of this guide.
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:
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.
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.
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.
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.
Note: This page covers information specific to Pennsylvania. For general information concerning defamation, see the Defamation Law section of this guide.
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:
Some examples of individuals deemed to be limited-purpose public figures by Pennsylvania courts include:
Some examples of individuals deemed to be private figures by Pennsylvania courts include:
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.
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.
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.
Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.
In Texas, the elements of a defamation claim are
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:
Some examples of individuals deemed to be limited-purpose public figures by Texas courts include:
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.
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:
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.
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).
Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.
In Virginia, the elements of a defamation claim are
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:
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:
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:
On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:
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.
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.
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.
Note: This page covers information specific to Washington. For general information concerning defamation, see the general Defamation Law section of this guide.
According to Washington law, defamation claims have four elements:
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 FiguresWashington 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 NegligenceWashington 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).
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.
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.