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Defamation

R eputation is a man's property, and as Blackstone described this right: “Every

man is entitled to have his reputation preserved inviolate” 1 as to say preserved
from any incidental harm that can alter the perception of that person by the
general public. Reputation is then “common or general estimate of a person with
respect to character or other qualities”2 or “The state of being held in high esteems
and honor”3 by oneself and by others, it is in this reasoning linked to the opinion
towards that person, consequentially, it is highly important to preserve the integrity of
the reputation from torts like defamation. Defamation is the one of the most known
"social" torts in law. It is defined as “a catch-all term for any statement that hurts
someone's reputation”4. The law of torts distinguishes between written defamation
which is called "libel," and spoken defamation which is known as "slander".

The origins of defamation doctrine date back to the ninth century, the Laws of Alfred
the Great provided that public slander was "to be compensated with no lighter a
penalty than the cutting off of the slanderer's tongue.” 5 Although applications of the
theory have evolved through a long period of time and much less severe sanctions are
now established. The concept itself of defamation revolved around different values
such as “Honour”, ”Dignity”, “Property”6, to actually bind on reputation as we know
it. Real development of defamation law to include damages for “loss of reputation”
have started at least since the 20th century which is linked to the recognition of an
“internal” or personal life of the defamed party and the acquaintances of this party7.

As for the historical origins of the word Defamation, it is driven from the Latin word
‘Diffamare’. This provides that it means “Spreading evil report about someone”. Thus,
defamation can be identified as causing damage to the reputation of another 8 which
gives legitimacy to the emergence of defamation laws to punish those who are held
liable of defaming others.

1
Summary Of Papers of Judicial Officers on DEFAMATION: Its Civil and Criminal Liability, p 1 (Mja.gov.in).
2
OXFORD ENGLISH DICTIONARY 496 (James Murray ed. 1910).
3
See first reference.
4
www.Findlaw.com, (Libel, Slander, and Defamation Law: The Basics)
5
LOVELL (C.R), “The Reception of Defamation by the Common Law”, 15 VAND. L. REV.1051, (quoting from the
Laws of Alfred the Great), 1952.
6
POST (R.C), “The Social Foundations of Defamation Law: Reputation and the Constitution” 74 California Law
Review 691, 1986.
7
HOLDSWORTH (W.S), “Defamation in the Sixteenth and Seventeenth Centuries”, Law Quarterly Review Vol. 40
No. 302 (Pt 1), 1924.
8
See first reference.
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Defamation laws, however, seek to balance two strong and often competing values: the
freedom of speech and press and the reputational interests of the private individuals 9 as
guaranteed by the First Amendment of the United States Constitution. These two
constraining imperatives are necessary as democratic values for a society to prosper;
however, equilibrium can be hard to reach especially with the increased predominance
of social media that lead to disseminate information on a scale previously unobtainable
and blurred the lines between what should be kept personal and what is publicly
shareable.

This line of thoughts conducts us to a legitimate problematic as to the establishment of

the defamation tort. In order to answer this judicial requirement, this study will evoke
in a first part the identification of defamation (I) as a concept before moving on to
exceptions which provide immunity from a defamation action (II).

Part One: Identifying defamation

According to the American Restatement of Torts, a communication may be assessed as
defamation "if it tends so to harm the reputation of another as to lower him in the
estimation of the community or to deter third persons from associating with him," 10.
This statement evokes some conditions of establishment of the defamation tort, though
in order to capture the scope of the defamation tort, we must first review the types of
defamation. Defamatory statements are limitless and can actually take a number of
forms; though in common law, we distinguish principally between two types of
statements: Libel and slander (a) and each of them require the presence of a number of
elements in order to establish a defamation claim (b).

a) Types of defamation statements : Libel and slander

The libel statements are “expressed by print, writing, pictures, signs, effigies, or any
communication embodied in physical form that is injurious to a person's reputation,
exposes a person to public hatred, contempt or ridicule, or injures a person in his/her
business or profession.”11 As defined by The Legal Information Institute. It may be
conveyed in some other permanent form as a statue, a caricature, chalk marks on a
wall, signs or pictures, it may include radio and television emitted statements too12.

The particularity of Libel torts in the United States resides in the fact that they’re
governed by state law which permits remedy of damages without the need to prove

9
BROWN (J.K), “Florida Defamation Law and The First Amendment: Protecting the reputational interests of the
private individual”, Florida State University Law Review, Vol. 11, No. 1, Art 6, 1983, p 197.
10
www.Findlaw.com (Elements of Libel and Slander)
11
www.Law.cornell.edu (Libel)
12
RESTATEMENT (SECOND) OF TORTS § 568 A (1977).
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actual harm13; which is why they are also known as statements defamatory per se,
meaning that their nature is manifestly harmful with no need for further investigation
for actual damages. There is a presumption of injury resulting from the act of
publication which we’ll be discussing later on. For the injured person of the
defamatory statement to claim for damages, these statements should, generally, belong
into one of four categories in order to derogate from the requirement of proof. These
categories include indications of involvement in criminal activity, that a person had a
contagious “loathsome” disease, a person’s engagement in a sexual misbehavior, or a
person’s involvement in an immoral misconduct concerning his professional domain
or business14. An example of this could be illustrated through the case of McDonald V.
Riggs (2007) in which the plaintiff was subject to accuse of false statements of assault
and other crimes, and the Court affirmed the award explaining that the “man was not
required to prove the damage to his reputation and emotional distress”15.

As for slander, it is known as “A false statement, usually made orally,

which defames another person”16. Slander is described as a defamatory per quod
statement meaning that its character is not manifestly apparent, and extra facts are
needed to explain its defamatory nature.17 Characteristics of slander include that it
should be either spoken, or committed by representations or other manners which are
treated as equivalent to speech, like shake of the head, nod, winking, or hissing. 18For
example if someone is falsely accused of committing a car accident by an insurance
company, the statement is considered as defamation per quod since the statement did
not involve expressions which attributed criminal conduct or immoral deed. 19
Defamation per quod is then, any type of defamation that requires more information
for the plaintiff to claim for damages.

Both of these types of defamation statements require some mandatory elements for a
plaintiff to effectively establish a defamation claim.

b) Elements of defamation claim

Filing an arbitration claim is not an arbitrary action, it is necessary for the defamation
to include a number of elements to be valid and to provide the plaintiff the subsequent
required remedy he asked for.

13
RESTATEMENT (FIRST) OF TORTS §§ 568, 575 (1938).
14
www.Findlaw.com (What is defamation per se).
15
See reference 14.
16
www.Law.cornell.edu (Legal Information Institute (Slander)).
17
Kolegas v. Heftel Broadcasting Corp., 607 NE 2d, Illinois Supreme Court (1992).
18
See first reference.
19
www.Revisionlegal.com (“Defamation Law: Libel Per Quod Definition, Examples, and Recourse” December
28, 2020 By DIGIACOMO (J)).
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Although defamation under common law is usually governed by the law of State, some
common criteria is worthy to be noted. The Restatement (SECOND) Of Torts 20
provides four elements contributing to the defamation liability which are: the
statement, the publication to a third party, the falsity21 of the statement, and the
unprivileged criteria.

The statement is considered to be the substance of defamation. It needs to be either

spoken or written as previously mentioned; however, libel is usually considered as
more harmful than slander for its permanence occurring through a traceable means,
contrary to the ephemeral nature of slander. The statement can be qualified as more
harmful or damaging if it erroneously condemns some private individual of sexual
misconduct or pedophilia.22

The second element of the defamation liability claim is the publication of the
mentioned statement; meaning that a third party who must be someone “other than the
person making the statement or the subject of the statement 23” should be aware or get
knowledge about the defamatory statement by any means of communication 24 which
could be written, heard, seen or symbolized in some manner. It is also to be noted that
each time that same statement is republished; it will be possible for the harmed person
to raise an action similarly to the first act of publication25.

The fourth element of establishing a defamation claim is falsity of the statement which
means untrue when compared to the actual facts; this is because a statement of opinion
“based on known, assumed, or undisclosed facts26” thus, it is usually relatively
personal and subjective to the speaker which is why a valid statement is not considered
by defamation law. The defendant will usually try to bring proof that his statement is a
mere description of reality and not an offense to the injured individual in order to
withdraw from assuming liability, on the other hand, the plaintiff must prove that the
defendant was aware of –at least- the recklessness and negligence or harmfulness and
defamatory meaning of his statement27.

As for the unprivileged criteria, it is a condition that encompasses the scope of the
defamatory statement. In precise circumstances, the injured party is unable to bring an
action for defamation if the statement is privileged; meaning that the publisher or other
persons implied in the defamation statement chain28 are protected by law for a wider
20
RESTATEMENT (SECOND) Of Torts § 558 (1977)
21
See https://www.findlaw.com/injury/torts-and-personal-injuries/defamation-law-the-basics.html
22
See previous citation
23
See previous citation
24
“Publication was communication of the statement, intentionally or negligently, to a person other than the
one defamed.”, SMITH (G.R), “Of Malice And Men: The Law Of Defamation”, Valparaiso University Law Review,
Vol.27, No 1, 1992, p 45.
25
RESTATEMENT (SECOND) Of Torts § 577(A)-78 ; Larkin v. Gerhardt, 157 N.E.2d 424, 426 (Il1. App. Ct. 1964).
26
SMITH (G.R), “Of Malice And Men: The Law Of Defamation”, Valparaiso University Law Review, Vol.27, No 1,
1992, p 45.
27
FRANKLIN (M.A) and BUSSEL (D.J), “The Plaintiff's Burden in Defamation: Awareness and Falsity”, William and
Mary Law Review, Vol.25, Issue 5, Art. 6, p 836, 1984.
28
“Conditional privileges, which included protections of sufficiently important interests of the publisher, the
recipient, a third person, or the public…” from previous citation.
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interest that prevails over the plaintiff’s interest; this criteria will be discussed later on
in the immunity chapter.

Another recognized element which is obvious but not mentioned in the Restatement of
Torts is injury.29It is obvious that the individual seeking the remedy for having a
defamatory statement which has harmed his reputation is in fact the subject of the
defamation act. The injury could be merely of social effects such as the person having
his reputation deter “in the eyes of the community” 30 or could be a more tangible and
important consequence such as losing a job or a potential business opportunity.

The reunion of these elements is considered to bring a higher chance of winning a

defamation case for the plaintiff, however, in some circumstances he can find himself
confronted by immunities which disempower him from bringing suit.

Part Two: Immunity from a defamation claim

As a means to conciliate between the two previously mentioned imperatives of the

constitutional freedom of speech and the right to keep the individual’s integrity of
reputation, mechanisms have evolved in both State and government law in order to
balance out both rights.

Under common law, this immunity is provided by defense privileges which are
defined by the Florida courts jurisprudence as “a statement or communication which
would otherwise be defamatory and actionable except if "the defendant is acting in
furtherance of some interest of social importance, which is entitled to protection even
at the expense of uncompensated harm to the plaintiff's reputation."31

Scholars mainly classify the defenses to defamation as absolute privileges (a) and
conditional privileges (b).

a) Absolute privileges

Absolute privileges grant the person publishing the defamatory statement an “absolute
immunity from liability in defamation actions” 32 they are defined as “a privilege that
exempts a person from liability especially for defamation regardless of intent or
motive”33 these privileges mainly take the form of truth or consent.

Truth has traditionally been a presumed defense, meaning that the plaintiff cannot
prove its defamatory character if the defendant proved that his statement rests upon a
29
See reference twenty-one.
30
The community in whose eyes the victim is defamed must be a "non-outlaw" group; it is not enough if the
group is “one whose standards are so antisocial that it is not proper for the courts to recognize them."
RESTATEMENT (FIRST) OF TORTS § 559 cmt. e (1938);RESTATEMENT (SECOND) OF TORTS § 559 cmt. e (1977).
31
PROSSER (W), Handbook Of The Law Of Torts, 4th ed. p 776, § 114, 1971.
32
State v. Tillet, 111 So. 2d 716 (Fla. 2d DCA 1959)
33
See subsequent legal definitions at https://dictionary.findlaw.com/definition/privilege.html
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solid ground. It is not necessary that the defendant proves that his statement is
absolutely true to apply defense, he may bring evidence proving that the core
meaning34 of the communication is in fact, true.

This defense is especially of a higher burden for public officials and/or public figures
since the landmark decision of The New York Times Company V. Sullivan (1964) in
which the court prevailed freedom of speech granted by the First Amendment over
personal interest of a public official, making it constitutional to comment on a public
figure, declaring that an "erroneous statement is inevitable in free debate, and ...it
must be protected if the freedoms of expression are to have the 'breathing space' that
they need. ..to survive.35” this decision gave birth to a more restrictive condition for
public figures as plaintiffs which are required, ever since, to prove the recklessness or
falsity of the defendant who issued the defamatory statement, and the scope of this
outcome has come to be adopted by many States as a required element of the
defamation claim, as previously mentioned.

In addition, public officials must be able to show and prove actual malice36 intended
by the publisher of the communication and that it was not a mere “honest mistake”.
The interest behind such condition is that freedom of speech requires that celebrities
and governmental officials are subject to criticism and their performance should and
could be assessed by the broader audience, this led to the “libel tourism” phenomena
in which some public figures have chosen to sue in jurisdictions that are “plaintiff-
friendly” in order to obtain damages in less severe litigation conditions 37 even if the
link to that jurisdiction is not sufficient.

Consent is also a form of privilege for the defendant, the person who consents to a
publication of defamatory communication about him cannot claim any remedies for
damage if he chooses to sue the defendant later on, which is why consent is considered
as a complete defense38.

In application, absolute defenses apply to circumstances concerning: “Judicial

proceedings, legislative proceedings, some executive communications, publications
between spouses, and publications required by law”39.

b) Conditional privileges
34
See https://www.findlaw.com/injury/torts-and-personal-injuries/defenses-to-libel-and-slander.html
35
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
36
« The intention or desire to cause harm (as death, bodily injury, or property damage) to another through an
unlawful or wrongful act without justification or excuse; malice proved by evidence to exist or have existed in
one that inflicts unjustified harm on another” from FindLaw Dictionary, see
https://dictionary.findlaw.com/definition/malice.html
37
“American actress Cameron Diaz won substantial damages for defamation in London’s High Court. Diaz had
sued American Media Incorporated for a story in the National Enquirer that alleged that she was having an
affair. As the story never appeared in the UK edition of the newspaper, Mr Justice Eady awarded the damages
on the basis that the story was briefly published on an American website which was potentially accessed by
visitors from the UK.” SPENCER (O) and CALLAMARD (A), “Civil Defamation: Undermining Free Expression”,
ARTICLE 19 Global Campaign for Free Expression, p 4, 2009.
38
See reference number 34.
39
See reference 34.
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Conditional privileges are also known as “qualified” privileges, are defined as “a

privilege esp. in the law of defamation that may be defeated esp. by a showing of
actual malice”40

A conditional privilege is a defense that has a precise scope and contrary to the
absolute privilege, does not depend on the quality of the person releasing the
defamatory statement, but is rather a result of the circumstances in which the
publication has occurred. Conditions are to be met in order to establish this privilege
for the defendant, which aim mainly to prove the truthfulness of the statement and the
non negligence or recklessness in dealing with the truth or falsity of the statement41.

The defendant has to prove his impartiality and objectiveness in assessing the facts on
which his statement relies since the plaintiff can be granted damages if he brings
evidence of an actual malice intended by the publisher of the defamatory statement.

Some State courts tried to precise the scope of conditional privilege such as the Florida
Supreme Court which indicates that a publication can be privileged from actual malice
if : “fairly made by a person in the discharge of some public or private duty, whether
legal or moral, or in the conduct of his own affairs, in matters where his interest is
concerned, ...[or] if fairly warranted by any reasonable occasion or exigency, and
honestly made, such communications are protected for the common convenience and
welfare of society; and the law has not restricted the right to make them within any
[named] limits”42. This citation illustrates the privilege of “fair comment” which is a
situation where the statement is relevant to the situation and is stated or published with
no “malice” intention, for the interest of the public good.

Scholars conclude a number of conditions in which qualified damages are applied

which include statements made to protect the personal interest of the publisher,
statements which aim to protect a third person’s interest, statements aiming to preserve
a common or public interest where a communication could be made in the need to be
knowledgeable to a public officer, and statements made by inferior state officers who
are not concerned by the category of officials and public officers who benefit from
absolute privilege43.

Conclusion

To conclude, the defamation tort is a controversial action that requires rigorousness in

order to conciliate between the constitutional right of freedom of speech and the

40
See reference number 33.
41
See reference 34.
42
Coogler v. Rhodes, 38 Fla. 240 (1896).

43
See supra note 34.
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integrity of individuals, more challenges are brought to this topic today with the
emergence of several media platforms which contribute to the hardships introduced to
the traceability of the resources of published statements such as gossips and Fake
News, moreover, new technologies provide the possibility to impersonate public
figures and release statements in their names with the DeepFake technology, which
can result in several claims condemning an innocent person.

There also seems to be a fine line between freedom of speech which allows the public
to give his opinion and criticize public figures and officers, and the possibility to
commit a defamation tort against them, loosening the conditions of proof against this
particular category of people runs the risk of endangering their reputation and more
importantly, their mental health especially with no precise parameters to establish the
degree of which a defaming “true” statement can vary. In the same context, Some
scholars have proposed to decline the usage of the plaintiff “status analysis” which
depends on whether the plaintiff is a public figure or a normal individual and replace it
with the “constitutional negligence standard” to minimize costs and provide more of a
just and similar litigation process conditions rather than rendering public figure
plaintiffs liable for being a celebrity44.

Additionally, although the “actual malice” criteria seems to be somewhat logical and
seeks to protect the intended defamation for the sake of harming the person concerned
by the statement, people’s intention cannot be as disclosing to a degree that could be
decisive in a defamation claim; on another hand, recurring to negligence criteria also
has his downsides since a negligent person isn’t necessarily to be punished for missing
some facts or details which could serve as facts justifying his statements and thus
allowing them the solid ground they need in order to defend himself and break free
from liability45.

Bibliography

Books

 General

44
See supra note 26, p 93.
45
See supra note 27, p 843.
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- PROSSER (W), Handbook Of The Law Of Torts, 4th ed., West Publishing
Company, 1981.

- EMERSON (T.I), The System of Freedom of Expression, Random House, 1970.

-COLLINS (M), Law of Defamation and the Internet, 3d ed., Oxford University
Press, 2010.

 Specific
- BEZANSON (R.P), CRANBERG (G) and SOLOSKI (J), Libel Law and the
Press: Myth and Reality, 480th ed., The Free Press, 1987.

- DENNIS (E.E), NOAM (E.M), The Cost of Libel: Economic and Policy
Implications, 1st ed., Columbia University Press, 1989.

-GATLEY (C), Gatley On Libel And Slander, 8th ed., London Sweet & Maxwell,
1981.

Articles:

LOVELL (C.R), “The Reception of Defamation by the Common Law”, 15 Colum.,

Vanderbilt Law Review, 1962.

POST (R.C), “The Social Foundations of Defamation Law: Reputation and the
Constitution” 74 Colum., California Law Review No. 691, 1986.

HOLDSWORTH (W.S), “Defamation in the Sixteenth and Seventeenth Centuries”,

Law Quarterly Review Vol. 40, No. 302 (Pt 1), 1924.

BROWN (J.K), “Florida Defamation Law and The First Amendment: Protecting the
reputational interests of the private individual”, Florida State University Law Review,
Vol. 11, No. 1, Art 6, 1983, p 197.

SMITH (G.R), “Of Malice And Men: The Law Of Defamation”, Valparaiso
University Law Review, Vol.27, No 1, 1992, p 45.

FRANKLIN (M.A) and BUSSEL (D.J), “The Plaintiff's Burden in Defamation:

Awareness and Falsity”, William and Mary Law Review, Vol.25, Issue 5, Art. 6, 1984,
p 836.

SPENCER (O) and CALLAMARD (A), “Civil Defamation: Undermining Free

Expression”, ARTICLE 19 Global Campaign for Free Expression, 2009, p4.

Dictionaries:

Oxford English Dictionary 496 (James Murray ed. 1910).

Elaborated by Synda Somai

Websites:

www.Findlaw.com

www.law.cornell.edu

www.Revisionlegal.com

www.dictionary.findlaw.com