As we continue our look into communications law, this post covers defamation with all quoted references from the book “The Law of Journalism and Mass Communication” Third Edition, 2012, by Robert Trager, Joseph Russomanno and Susan Dente Ross.

My husband recently posted an article to his Facebook page about a strange case of libel resulting from a negative customer review. Though I don’t believe the company would win its case in a court of law, it does bring attention to the matter of the thin line between an honest and protected opinion of an unhappy customer and defamatory remarks. To build, maintain and protect your reputation, solopreneurs and small business owners need to be aware where and when this line is drawn.

What is defamation?

Defamation is “false communication about another person that damages that person’s ‘fame’ or brings him into dispute” (p. 140). Defamation can be in written form, where it is known as libel, or in spoken form called slander.

What does defamation law protect?

With roots in English law, the U.S. Sedition Act of 1798 first brought defamation regulations. Anti-libel and slander laws are meant to protect a person’s reputation and discourage untruthful conduct.

How long does defamation last?

Typically, the statute of limitations to bring suit for defamation is two years. Depending on the state, though, the statute can be anywhere between one to three years. “The clock begins ticking on the date the material was made available to the public” (p.209).

What if I’m defamed?

As a plaintiff in a defamatory suit, you will have to prove seven criteria.

1. Publication
To be defamed, the libelous material must have been published or the slanderous material must have been heard by a third party.

2. Identification
You must be known in the defamatory material.

3. Statement of fact
The libelous material must be stated fact and not just an expression of opinion.

4. Defamatory material
The material in question must actually be defamatory in nature. This can either be libel per se, defamatory on face value, such as a false accusation, or libel per quod, defamatory with the need for additional information, such as implying someone is a frequent visitor of a nightclub known for illegal activities.

5. Falsity
The material must be false for defamation to occur. Falsity does not need to be an outright lie, however, as significant inaccuracy, omission of important information, and innuendo can also meet this requirement.

6. Fault
As the plaintiff, you “must show that the defendant was at fault in making public the allegedly false and defamatory statement of fact” (p. 160). For private individuals, negligence, “the failure to exercise reasonable or ordinary care,” (p. 160) is all that is needed to win suit. As established by New York Times v. Sullivan, public figures, though, must show actual malice, “a statement made knowing it is false or with reckless disregard for its truth,” (p.161) to receive damages.

7. Harm
Damage to reputation or other injury must be shown to prove defamation.

If a plaintiff wins his defamation case, he can claim either of two types of damages. Compensatory damages reimburse a plaintiff for the harm done to his reputation. These can come in the form of actual, an amount equal to the harm suffered, special, an exact amount in relation to the material loss, and presumed, no evidence of harm needed as some harm is assumed (to receive presumed damages, the plaintiff, private or public, must prove actual malice). The second type of damages is punitive, where the goal is to punish the wrongdoer in order to make an example of him and discourage others from defamatory acts.

What if I’m accused of defamation?

If you find yourself facing a defamation suit, there are 11 defenses to the charge.

1. Truth
The best defense, if a statement can be proven true, than it has a higher level of protection. Beware, though, there are privacy concerns that prohibit the publication of truthful items if they may cause an individual undue embarrassment.

2. Fair Report Privilege
Typically used by journalist, this defense protects media members who, as part of their jobs, report facts from official records. These public records can be found and used from all three branches of government.

3. Fair Comment and Criticism
This common law protection is used by critics to defend against defamation. The subject of the material in question must be in the public eye, which is different than a public figure. Someone in the public eye has entered into the public sphere. Therefore, it is hard to see how, using this defense, Kleargear will be able to win its lawsuit against the online reviewer.

4. Opinion
If the statement(s) in question cannot be verified as fact, then the defendant can prove the material was his opinion, and, therefore, protected by his First Amendment rights to free speech. This defense is one of the strongest as it invokes constitutional rights.

The courts developed a four-part test, known as the Ollman Test, to distinguish fact from opinion. The test asks 1) If he material can be verified as true or false; 2) What is the common usage or meaning of the words in the statement; 3) What is the journalistic context (placement in the publication) of the statement; and 4) What is the social context (what does it mean and where did it appear) into which the statement appeared?

5. Neutral Reportage
Only recognized in limited jurisdictions, this defense protects the reporting of defamatory statements in the form of accusations, later proven false, when made by a trustworthy organization.

6. Wire Service
So long as the defendant received information from a reputable news gathering service and published it, he is not liable for the mistake if he did know it was false, nothing about the story would have alerted him to believe it was false, and the original wire service story was not substantially changed in publication.

7. Single Publication
A rule that limits accountability to only the original publishing and not multiple publications. For example, if a newspaper with a distribution of 50,000 papers printed its Jan. 3, 2014 edition with defamatory material, it could only be held responsible for one count of defamation for the single edition and not another 49,999 additional copies.

8. Consent
If the plaintiff grants permission to the defendant to publish the defamatory material, then the plaintiff cannot win a suit for defamation.

9. Libel-Proof Plaintiff
In the case where the reputation of the plaintiff is so tarnished by previous deeds that the current defamatory material cannot further any more damage, then the defendant is protected from the defamation charge.

10. Self Defense
In proportional defamation cases, the plaintiff and defendant equal out each others’ claims when they have both committed the offense.

11. Single Mistake
When a professional has made a slight mistake in the reporting of facts. This is similar to the “breathing room” allowed in a truth defense when the accuracy of the statements are not required to be exact, when the mistake would bring such small consequence to a person’s reputation.

To lesson defamation charges, those accused should also consider issuing retractions and corrections if the material is in fact mistaken. By practicing responsible reporting tactics, such as seeking out interviews with multiple parties from both sides, the defendant to a defamation suit stands a better chance in court.

Defamation is a serious threat to reputation. Knowing defamation law standards can help protect you. What examples of defamation have you witnessed?

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