This entry contains information applicable to United States law only. Two torts that involve the communication of false information about a person, a group, or an entity such as a corporation. Libel is any defamation that can be seen, such as a writing, printing, effigy, movie, or statue. Slander is any defamation that is spoken and heard.
Collectively known as defamation, libel and slander are civil wrongs that harm a reputation; decrease respect, regard, or confidence; or induce disparaging, hostile, or disagreeable opinions or feelings against an individual or entity. The injury to good name or reputation is effected through written or spoken words or visual images. The laws governing these torts are identical.
To recover in a libel or slander suit, the plaintiff must show evidence of four elements: that the defendant conveyed a defamatory message; that the material was published, meaning that it was conveyed to someone other than the plaintiff; that the plaintiff could be identified as the person referred to in the defamatory material; and that the plaintiff suffered some injury to her reputation as a result of the communication.
To prove that the material was defamatory, the plaintiff must show that at least one other person who saw or heard it understood it as having defamatory meaning. It is necessary to show not that all who heard or read the statement understood it to be defamatory, only that one person other than the plaintiff did so. Therefore, even if the defendant contends that the communication was a joke, if one person other than the plaintiff took it seriously, the communication is considered defamatory.
Defamatory matter is published when it is communicated to someone other than the plaintiff. This can be done in several different ways. The defendant might loudly accuse the plaintiff of something in a public place where others are present, or make defamatory statements about the plaintiff in a newsletter or an on-line bulletin board. The defamation need not be printed or distributed. However, if the defendant does not intend it to be conveyed to anyone other than the plaintiff, and conveys it in a manner that ordinarily would prevent others from seeing or hearing it, the requirement of publication has not been satisfied even if a third party inadvertently overhears or witnesses the communication.
Liability for republication of a defamatory statement is the same as for original publication, provided the defendant had knowledge of the contents of the statement. Thus, newspapers, magazines, and broadcasters are liable for republication of a libel or slander because they have editorial control over their communications. On the other hand, bookstores, libraries, and other distributors of material are liable for republication only if they knew or had reason to know the statement was defamatory. Common carriers such as telephone companies are not liable for defamatory material they convey, even if they know it is defamatory, unless they know or have reason to know that the sender does not have a privilege to communicate the material. Suppliers of communications equipment are never liable for defamatory material transmitted through the equipment they provide.
In general, there are four defenses to libel or slander: truth, consent, accident, and privilege. The fact that the allegedly defamatory communication is essentially true is usually an absolute defense; the defendant need not verify every detail of the communication, as long as its substance can be established. If the plaintiff consented to publication of the defamatory material, recovery is barred. Accidental publication of a defamatory statement does not constitute publication. Privilege confers immunity on a small number of defendants who are directly involved in the furtherance of the public's business — for example, attorneys, judges, jurors, and witnesses whose statements are protected on public policy grounds.
Before 1964 defamation law was determined on a state-by-state basis, with courts applying the localcommon law. Questions of freedom of speech were generally found to be not relevant to libel or slander cases, and defendants were held strictly liable even if they had no idea that the communication was false or defamatory, or had exercised reasonable caution in ascertaining its truthfulness. This deference to state protection of personal reputation was confirmed in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), in which the Supreme Court stated, "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise constitutional problems." The Court in Chaplinsky held that defamatory speech is not essential to the exposition of ideas and can be regulated without raising constitutional concerns. This reasoning was confirmed in Beauharnais v. Illinois, 343 U.S. 250, 72 S. Ct. 725, 96 L. Ed. 919 (1952), where the Court held again that libelous speech is not protected by the Constitution.
In 1964 the Supreme Court changed the direction of libel law dramatically with its decision in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, for the first time, the Court placed some libelous speech under the protection of the First Amendment. The plaintiff, a police official, had claimed that false allegations about him were published in the New York Times and sued the newspaper for libel. The Supreme Court balanced the plaintiff's interest in preserving his reputation against the public's interest in freedom of expression in the area of political debate. The Court decided that "libel can claim no talismanic immunity from constitutional limitations. It must be measured by standards that satisfy the First Amendment." It held that to protect the free flow of ideas in the political arena, the law requires that a public official alleging libel must prove actual malice in order to recover damages. The First Amendment protects open and robust debate on public issues even when such debate includes "vehement, caustic, unpleasantly sharp attacks on government and public officials."
Since Sullivan a public official or other person who has voluntarily assumed a position in the public eye must prove that a libelous statement "was made with ‘actual malice' — that is, with knowledge that it was false or with reckless disregard of whether it was false or not" (Sullivan). The actual-malice standard does not require any ill will on the part of the defendant. Rather, it merely requires that the defendant be aware that the statement is false or is very likely false. Reckless disregard is present if the plaintiff can show that the defendant had "serious doubts as to the truth of [the] publication" (see St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 [1968]).
Also since Sullivan the question of who is a public official has often been raised. In Rosenblatt v. Baer, 383 U.S. 75, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966), the Court found that a nonelected official "among the hierarchy of government employees who have, or appear to have, substantial responsibility for or control over the conduct of public affairs" was a public official within the meaning of Sullivan. Similarly, in Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971), the Court found that a candidate for public office fell within the category of public officials who must prove actual malice in order to recover.
Eventually, Sullivan's actual-malice requirement was extended to include defendants accused of defaming public figures who were not government officials. In the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967), the Court held that a football coach at the University of Georgia and a retired Army general were similar to public officials in that they enjoyed a high degree of prominence and access to the mass media that allowed them to influence policy and counter criticisms leveled against them.
The Court refined its definition of public figure in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974), where it held that public figures are those who thrust themselves into the public eye and invite close scrutiny. The Court also recognized two types of public figures: those who are "public figures for all purposes" and those who are public figures for limited purposes. For an individual to be considered a public figure in all situations, the person's name must be so familiar as to be a household word — for example, Johnny Carson. A limited-purpose public figure is one who voluntarily injects himself into a public controversy and becomes a public figure for a limited range of issues. Limited-purpose public figures have at least temporary access to the means to counteract false statements about them. By voluntarily placing themselves in the public eye, they relinquish some of their privacy rights. For these reasons, false statements about limited-purpose public figures that relate to the public controversies in which they are involved are not considered defamatory unless they meet the actual-malice test set forth in Sullivan.
Defining who is a limited-purpose public figure has been compared with trying to nail a jellyfish to a wall. Nonetheless, the Court has attempted this feat on several occasions. In Time, Inc., v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed. 2d 154 (1976), it held that a wealthy socialite involved in a widely publicized divorce was not a public figure because she had not thrust herself into the public eye in order to influence the resolution of any public issue. Her divorce was not a public controversy, although it had undeniablepublic interest. Likewise, in Hutchinson v. Proxmire, 443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. 2d 411 (1979), a scientist whose research was subjected to ridicule when he received a Golden Fleece Award from Senator William Proxmire was not a public figure because he had neither thrust himself into the public spotlight nor sought to influence public opinion. Proxmire gave these awards to people he felt were fleecing the public by using tax dollars on frivolous or useless causes. The Court found that the scientist's notoriety arose strictly from Proxmire's libelous statements about him and his research. Proxmire's claim that Hutchinson was a public figure was rejected because Proxmire's libelous actions were responsible for thrusting Hutchinson into the public eye.
A 1991 case made it somewhat easier for public figures to sue authors and publishers for libel. Masson v. New Yorker Magazine, 501 U.S. 496, 111 S. Ct. 2419, 115 L. Ed. 2d 447 (1991), held that a plaintiff alleging libel satisfies the actual-malice standard if it can be proved that the author deliberately altered the plaintiff's words and that the alteration resulted in a material change in the meaning conveyed by the plaintiff in the original statement. Jeffrey M. Masson, a prominent psychoanalyst, had sued Janet Malcolm, the author of an article and book about him, as well as the New Yorker magazine and Knopf publishers, which had published the article and book, respectively. Masson claimed that quotations attributed to him in those publications were false and libelous. Malcolm conceded that she had altered quotations in order to make the finished product more readable, but maintained that the essence of Masson's words had not been changed. The Court held that quotation marks around a passage "indicate to the reader that the passage reproduces the speaker's words verbatim." The Court was careful to protect journalistic freedom, and went on to say that deliberate alteration of quotations does not automatically prove actual malice:
We conclude that a deliberate alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for purposes of New York Times Co. v. Sullivan … and Gertz v. Robert Welch, Inc. … unless the alteration results in a material change in the meaning conveyed by the statement. The use of quotations to attribute words not in fact spoken bears in a most important way on that inquiry, but it is not dispositive in every case.
The tremendous growth of electronic communications networks during the 1990s has raised numerous questions about liability for defamation. Suddenly, it is possible to commit libel and instantly communicate a libelous statement to thousands of people. When libel is perpetrated in cyberspace, who is responsible? Are on-line information providers considered publishers, distributors, or common carriers? What level of First Amendment protection should be afforded to defamatory statements transmitted electronically?
By 1996 only a handful of cases had tackled these thorny issues. In Cubby, Inc. v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), the plaintiff sued CompuServe, an online computer service company, for libel because of statements that appeared in a newsletter written and uploaded by an independent company and transmitted through CompuServe's network. The court found that CompuServe had no editorial control over the contents of the newsletter and was therefore only a distributor of the newsletter. CompuServe could not be held liable for the newsletter's contents unless it knew or had reason to know that the newsletter contained defamatory statements. Conversely, in Stratton Oakmont v. Prodigy Services Co., 63 U.S.L.W. 2765, 23 Media L. Rep. 1794, 1995 WL 323710 (N.Y. Sup. Ct. 1995); reh'g denied, 24 Media L. Rep. 1126 (N.Y. Sup. Ct. 1995), the court found that Prodigy, an on-line provider similar to CompuServe, was a publisher rather than a distributor, and was liable for the defamatory material in question because it exercised considerable editorial control over what appeared on its system.
See: freedom of the press; New York Times v. Sullivan.
