Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.
California Elements of Defamation
Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.
The elements of a defamation claim are:
- publication of a statement of fact
- that is false,*
- has a natural tendency to injure or which causes "special damage," and
- the defendant's fault in publishing the statement amounted to at least negligence.
Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.
*As a matter of law, in cases involving public figures or matters of public concern, the burden is on the plaintiff to prove falsity in a defamation action. Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th 364 (Cal. Ct. App. 1996). In cases involving matters of purely private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646 & n.5 (Cal. Ct. App. 1999). A reader further points out that, even when the burden is technically on the plaintiff to prove falsity, the plaintiff can easily shift the burden to the defendant simply by testifying that the statements at issue are false.
Defamation Per Se
A plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature. See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008).
For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).
In California, public officials are those who have, or appear to the to have, substantial responsibility for or control over the conduct of government affairs. For example, the following persons have been considered public officials in California:
- A police officer, an assistant public defender, an assistant district attorney, and a government employed social worker.
In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Someone who voluntarily seeks to influence resolution of public issues may also be considered a public figure in California. For example, the following persons have been considered public figures in California:
- A former City Attorney who also represented the city's redevelopment agency;
- A licensed clinical psychologist whose so-called “Nude Marathon” in group therapy is a means of helping people to shed their psychological inhibitions by the removal of their clothes;
- An author and television personality;
- The founder of a Church that has a program for the rehabilitation of drug addicts;
- An associate of Howard Hughes, a famous aviator, movie producer, and billionaire, from approximately 1956 to 1970 who functioned as an "alter ego" and "personal representative" of Mr. Hughes;
- A real-estate developer who was interested in building a housing development near a toxic chemical plant; and
- A "prominent and outspoken feminist author" and anti-pornography advocate.
Limited-Purpose Public Figures
A limited-purpose public figure is a person who voluntarily injects herself or is drawn into a particular public controversy. It is not necessary to show that she actually achieves prominence in public debate; her attempts to thrust herself in front of the public is sufficient. Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose public figures, the alleged defamation must be relevant to the plaintiff's voluntary participation in the public controversy (if the issue requires expertise or specialized knowledge, the plaintiff's credentials as an expert would be relevant).
In California, the following persons have been considered limited-purpose public figures:
- The president of two corporations located in a California village that opposed the rezoning of property adjacent to his property. Kaufman v. Fidelity Fed. Sav. & Loan Ass'n, 189 Cal.Rptr. 818 (Cal. Ct. App. 1983);
- An individual who publicly claimed to be an expert in earthquake safety and a veteran in earthquake rescue operations. Copp v. Paxton, 52 Cal.Rptr.2d 831 (Cal. Ct. App. 1996).
Actual Malice and Negligence
In California, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.
Privileges and Defenses
California courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, and substantial truth.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fair Report Privilege
California courts have codified the fair report privilege in Cal. Civil Code §47(d) and (e). The privilege generally applies to publicly available government records, official government reports, and statements made by government officials.
Neutral Reportage Privilege
The California Supreme Court has not formally recognized the neutral reportage privilege. Nevertheless, several federal courts have applied the neutral report privilege in cases involved California law and there are relatively strong indications that state courts in California would apply the privilege if faced with the proper fact pattern.
The California Supreme Court indicated a possible willingness to consider the neutral report privilege in the context of public figure defamation. In that case, which involved an allegation that the plaintiff, a private citizen, participated in the Robert Kennedy assassination when he was 21 years old, the California Supreme Court held that the neutral report privilege did not apply to cases where the plaintiff was a private figure. Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question, however, whether the neutral report privilege would apply if the defamatory statement involved a public figure.
In addition, several lower California courts have expressed support for the privilege without directly ruling that the privilege applies. See Weingarten v. Block, 102 Cal. App. 3d 129, 148 (1980); Grillo v. Smith, 144 Cal. App. 3d 868, 872 (1983); Stockton Newspapers, Inc. v. Superior Court, 206 Cal. App. 3d 966, 981 (1988); Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 732-33 n.18 (Cal. Ct. App. 1989).
Although their application of the privilege is not binding on California state courts, two federal courts in the state have applied the neutral reportage privilege in situations involving the following:
- A college basketball player (ruled a public figure) who accused his coach (also deemed a public figure) of participating in payments made to the player by team boosters. Barry v. Time, Inc., 584 F. Supp. 1110, 1112 (D. Cal. 1984). The court held that there was no requirement that the person making the accusation have a reputation for "trustworthiness" for the neutral report privilege to apply.
- The details published by a tabloid, News of the World, about the private life of a well known actor. Ward v. News Group Int'l, 733 F. Supp. 83 (D. Cal. 1990). The court emphasized that the republication occurred in a fair and accurate manner and that the tabloid published the actor's denial along with the accusation.
Wire Service Defense
The wire service defense generally is not recognized in California. However, one trial court in California did recognize the wire service defense in an unpublished decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court level and unpublished, other California courts are free to disregard the court's decision to apply the wire service defense.
Statute of Limitations for Defamation
California's statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).
California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass'n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.