Defamation in General

Defamation is a false and unprivileged statement of fact that is defamatory, about the plaintiff, and that published "with fault," meaning as a result of negligence or malice. Libel is a written defamation; slander is a spoken defamation. State laws often define defamation in specific ways. See, e.g., California Civ. Code §§ 44, 45, 45a, 46.

1. The elements that must be proved to establish defamation typically are:

A. a false and defamatory statement concerning another;

B. an unprivileged publication to a third party;

C. fault amounting at least to negligence on the part of the publisher; and

D. either action-ability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Restatement (Second) of Torts § 558.

2. Truth is an absolute defense to a defamation claim. Cort v. St. Paul Fire and Marine Ins. Companies, Inc., 311 F.3d 979, 985 (9th Cir. 2002) ("An essential element of defamation is that the publication in question must contain a false statement of fact.") (quoting Savage v. Pac. Gas & Elec. Co., 21 Cal. App. 4th 434, 444 (1993)). Even a statement whose “gist” or “sting” is substantially true is not actionable. See, e.g., Masson v. New Yorker Magazine, 501 U.S. 496, 516 (1991) ("[A] statement is not considered false unless it 'would have a different effect on the mind of the reader from that which the pleaded truth would have produced.'") (quoting R. Sack, Libel, Slander, and Related Problems 138 (1980)); Francis v. Dun & Bradstreet, 3 Cal. App. 4th 535, 541 (1992) ("[T]ruth is a complete defense to a defamation action regardless of the malice or ill will of the publisher.); Maheu v. Hughes Tool Co., 569 F.2d 459, 481 (9th Cir. 1977) ("To escape liability for defamation . . . [one does] not have to prove the literal truth of the statement [at issue]."); Kurata v. Los Angeles News Pub. Co., 4 Cal. App. 2d 224, 227 (1935) ("[A] slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently . . . .").

3. A statement that does not contain an express or implied assertion of verifiable fact is not actionable. Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (not defamatory if statement "cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.”). See, e.g., Hustler Magazine v. Falwell, 485 U.S. 46, 57 (1988) (Parody implying Falwell involved in incest could not "reasonably be understood as describing actual facts about [Falwell] or actual events in which [he] participated’”); Ollman v. Evans, 750 F.2d 970, 981 (D.C. Cir. 1984), cert. denied, 471 U.S. 1127 (1985) (“the reasonable reader . . . perusing [a] column on the editorial or Op-Ed page is fully aware that the statements found there are not ‘hard’ news like those printed on the front page or elsewhere in the news sections of the newspaper.”); Partington v. Buliosi, 56 F.3d 1147, 1158, (9th Cir. 1995) (subjective, ambiguous terms such as “false,” “phony,” “hefty mark-up” are “unprovable, since those adjective admit of numerous interpretations . . . . [They are] too subjective . . . to be verifiable” and therefore are not actionable.”) This is consistent with the Supreme Court’s holding that “this country has a ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open.’” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (citation omitted).

A. In lay terms, this category can be thought of as statements of “opinion,” except that merely labeling a statement as one’s “opinion” does not render it non-actionable. The test is whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. See id.; see also Gilbrook v. City of Westminster, 177 F.3d 839, 861-62 (9th Cir. 1999) (stating that the threshold question in a defamation suit is whether "a reasonable factfinder [could] conclude that the contested statement implies an assertion of objective fact). “This provides assurance that public debate will not suffer for lack of ‘imaginative expression’ or the ‘rhetorical hyperbole’ which has traditionally added much to the discourse of our Nation.” Milkovich, 497 U.S. at 20; see also Letter Carriers v. Austin, 418 U.S. 264, 285-86 (1974) (accusing plaintiffs of “rotten principles” not actionable). This is especially true where the statement was:

made in public debate . . . or other circumstances in which ‘an audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole.'

Lewis v. Time Inc., 710 F.2d 549, 553 (9th Cir. 1983); see also Underwager v. Channel 9 Australia, 69 F.3d 361, 366-367 (9th Cir. 1995) (comments made in context of heated debate would be viewed as spirited critique and audience would expect emphatic language on both sides).

B. At least one court has determined that the fact that statements are made in the context of an Internet bulletin board “strongly suggest[s] that [the statements] are the opinions of the posters.” Global Telemedia Int’l Inc. v. Doe, 132 F. Supp. 2d 1261 (C.D. Cal. 2001) (finding statement on bulletin board about publicly traded company was not actionable as business libel); see also Rocker Mgmt. v. John Does, No. MISC 03-003 3, 2003 U.S. Dist. Lexis 16277, *6-*7, 2003 WL 22149380 (N.D. Cal. May 28, 2003) (holding that "vague" and "hyperbolic" statements posted in an internet chat room were not defamous); ComputerXpress, Inc. v. Jackson, 113 Cal. Rptr. 2d 625, 643 (Cal. Ct. App. 2001) (holding that "vague" assertions, such as claiming a company cares more selling stock than running a legitimate business, are not sufficient to support a finding of defamation); SPX Corp. v. Doe, 253 F. Supp. 2d 974, 980-81 (N.D. Ohio 2003) (holding that where statements are "imprecise" or "figurative" that this will weigh against a finding of defamation). Similarly, a Illinois court found that a tweet was not defamatory. Horizon Group Management v. Bonnen, 2009L008675 (Ill. Cir. Ct., Jan 20, 2010).

C. The Ninth Circuit has a three part test to determine if a statement is an assertion of fact. Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th Cir. 1990). In making the determination the court looks to (1) whether the language at issue is "figurative" or "hyperbolic," (2) whether the general tenor of the statements negates the initial impression, and (3) whether the assertion is capable of being proven true or false. Id.

4. Although there is authority that a statement must be about the plaintiff “to a certainty,” Murray v. F. Lee Bailey, 613 F. Supp. 1276, 1283 (N.D. Cal. 1985), most decisions merely require that plaintiff be reasonably identifiable, and it is not necessary that the plaintiff be identified by name. Church of Scientology of Cal. v. Flynn, 744 F.2d 694, 697 (9th Cir. 1984) (finding that the group libel rule did not apply where the statements at issue were made to a specific actor rather than the larger overall organization).

5. The date of “publication” begins the running of the one year statute of limitations and is measured from the date the material is first placed into distribution. McGuiness v. Motor Trend Magazine, 129 Cal. App. 3d 59 (1982); see also Firth v. State, 706 N.Y.S.2d 835, 840 (N.Y. Ct. Cl. 2000), aff’d, 98 N.Y.2d 365 (2002) (holding that the fact that an allegedly defamous report was available on a website did not constitute a "continuing wrong" and the initial publication date was applicable with regard to the statute of limitations).

6. The requirement that the plaintiff prove fault is constitutionally based.

A. A private figure plaintiff need only prove that the defendant acted negligently, i.e., that a reasonable person or journalist would not have published the statement under the circumstances. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974) (refusing to extend the N.Y. Times v. Sullivan standard to private individuals).

B. A public official or public figure plaintiff must prove “actual malice,” i.e., that the defendant published the disputed statement with either knowledge of falsity or in reckless disregard of whether the statement was true or false. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Reader’s Digest Ass’n v. Superior Court, 37 Cal. 3d 244 (1984), cert. denied, 478 U.S. 1009 (1986) (holding plaintiff to be a "limited purpose" public individual). In addition, such a plaintiff must prove actual malice with “convincing clarity.” Anderson v. Liberty Lobby, 477 U.S. 242 (1986).

C. What constitutes a public official or a public figure is a matter of evolving decisions. See discussion under Selected Defenses.

D. Few plaintiffs can meet the high burden of proving actual malice. See New York Times v. Sullivan, 376 U.S. at 279-280 (higher burden essential to avoid dampening the vigor and variety of public debate).