Gregory A. Abbott, Esq.

Elements of Libel and Slander

I. WHAT IS DEFAMATION?

Libel or Slander: Libel is written, slander is oral.

Historically, defamation consisted of slander and libel. Slander is defamation by speaking, and libel is defamation by means of writing. After the invention of the printing press, the permanence of the written word meant that libel caused far more damage than slander. Slander, however, had a big impact in pre-literate communities where the spoken word was the primary way information was exchanged.

In modern times, the legal distinction between libel and slander has been narrowed. Most modern defamation cases involve libel, and modern writers have come to use the term "defamation" to describe both libel and slander.

Defamation consists of the following:

(1) a defamatory statement;
(2) published to third parties; and
(3) which the speaker or publisher knew or should have known was false.

Each of these element has generated controversy. We shall examine them in turn:

A. A Defamatory Communication

What is a "defamatory" statement?

1. A statement which causes harm to reputation.

A statement is defamatory if it "tends to injure the plaintiff's reputation and expose the plaintiff to public hatred, contempt, ridicule, or degradation." Phipps v. Clark Oil & Ref. Corp., 408 N.W.2d 569, 573 (Minn. 1987). When the defamatory meaning is not apparent on its face, the plaintiff has the burden of pleading and proving such extrinsic facts. Anderson v. Kammeier, 262 N.W.2d 366, 371 (Minn. 1977).

2. Defamation Per se

Some statements are so defamatory that they are considered defamation per se; and the plaintiff does not have to prove that the statements harmed his reputation. The classic examples of defamation per se are allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease. The historical examples of loathsome diseases are leprosy and venereal diseases.

When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.

3. What Constitutes Injury to Reputation?

The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; see Gobin v. Globe Publishing Co., 232 Kan. 1, 649 P.2d 1239, 1244 (1982); Swanson v. American Hardware Mutual Ins. Co., 359 N.W.2d 705, 707 (Minn. App. 1984) (rev. denied) ("To establish a claim in a defamation action [plaintiff] must prove that the [defendant] made false and defamatory statements about them which injured their reputation.").

Evidence of plaintiff's poor reputation is generally admissible to mitigate damages. Davis v. Hamilton, 92 N.W. 512, 515 (Minn. 1902); Finklea v. Jacksonville Daily Progress, 742 S.W.2d 512, 517 (Tex. App. 1987). If an individual's reputation cannot be further damaged, a defamation suit serves no purpose, wastes judicial resources, and hinders First Amendment interests. Id.

The "libel-proof" plaintiff. A plaintiff is "libel-proof" when his reputation has been irreparably stained by prior publications. At the point the challenged statements are published, then, plaintiff's reputation is already so damaged that a plaintiff cannot recover more than nominal damages for subsequent defamatory statements. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1079 (3rd Cir. 1985).

However, a court will not dismiss a defamation action merely because the plaintiff already has a bad reputation. Schiavone Construction Co. v. Time, Inc., 646 F. Supp. 1511, 1516 (D.N.J. 1986), rev'd, 847 F.2d 1069, 1072-73 (3rd Cir. 1988). Finklea, 742 S.W.2d at 516 ("[E]ven the public outcast's remaining good reputation is entitled to protection.") Rather the statement upon which the defamation claim is based should relate to the same matters upon which the prior bad reputation was founded, or to substantially similar matters.

In extreme cases, a plaintiff's general reputation may be so bad that a court will hold a plaintiff libel-proof on all matters. For example, Charles Manson or Adolph Hitler could not be damaged by defamatory statements. Langston v. Eagle Publishing Co., 719 S.W.2d 612, 623 (Tex. App. 1986).

B. The Statement was published to third persons

Defamatory statements must be communicated to a third party. You cannot defame someone by speaking to them alone, or by muttering to yourself. This element of defamation is virtually always satisfied when claims are made against newspapers and broadcast media.

C. The defendant knew or should have known that the communication was false

Defamation allows recovery for unfair damage to reputation. As a consequence, if true statements are made about a person which damage their reputation, they cannot maintain a lawsuit.

This is a relatively recent development. One origin of libel and slander laws was a criminal cause of action by the English Crown used to silence its critics; hence, it was the truth of the alleged libel which provoked the lawsuit. However, as the right of free speech developed and gained support, the use of defamation to suppress true statements was rejected. Virtually all states today apparently require that the alleged defamatory statement be false before a defamation action may proceed.

For example, the Minnesota Supreme Court has held:

We hold that a private individual may recover actual damages for a defamatory publication upon proof that the defendant knew or in the exercise of reasonable care should have known that the defamatory statement was false. The conduct of defamation defendants will be judged on whether the conduct was that of a reasonable person under the circumstances.

Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d 476, 491 (Minn. 1985). Other cases follow this reasoning. See LeDoux v. Northwest Publications, Inc., 521 N.W.2d 59, 67 (Minn. App. 1994) ("In order for a statement to be defamatory . . . it must be false."); Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) ("Libel, by definition, consists of publication of a false and unprivileged fact.").

However, the U.S. Supreme Court has expressly reserved the question of whether the U.S. Constitution requires purely private defamation plaintiffs to prove falsity in all cases. See Philadelphia Newspapers, Inc. v. Hepps, 476 U.S. 767, 779 n.4 (1986). In other words, there may be no constitutional barrier if a particular state wishes to allow defamation actions even for true statements.

How false is false? The test is whether the alleged defamatory statement as a whole is true or false. Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. "The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial." Jadwin, supra, 390 N.W.2d at 441.

No Defamation by Implication. Failure to report all the facts may lead to a defamatory conclusion by the reader. But unless the overall substance of the statement can be proven false, no defamation claim will arise. "[T]he cause of action known as defamation by implication . . . is not recognized in Minnesota." Kortz v. Midwest Communications, Inc., 20 Media Law Rep. (BNA) 1860, 1865 (Ramsey County Dist. Ct. 1992). A public official may not maintain a defamation by implication claim. Diesen v. Hessberg, 455 N.W.2d 446, 451 (Minn. 1990).

D. Negligence Is Standard Of Liability

In Minnesota, the defendant is liable if it "knew or should have known in the exercise of reasonable care" that the defamatory statement was false. Jadwin, supra. This is the standard formulation for liability based on negligence, that is, liability arising from failure to take due care.

This is a low standard of liability. However, First Amendment considerations substantially limit the application of this standard.

II. Defenses to Defamation

A. Truth

Truth is a complete defense to a defamation claim. This is simply the flip side of the requirement that plaintiff prove the falsity of the alleged defamatory statement.

B. The First Amendment

1. Public Officials/Public Figures: Actual Malice must be proven.

The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense.

2. Matter of Public Concern: Actual Malice must be proven.

In cases where the media defendant is treating an issue of public concern, the First Amendment also requires proof of actual malice or reckless disregard of the truth, even if the plaintiff is not a public figure. Gertz v. Robert Welch, 418 U.S. 323, 349-50 (1974). See also Hepps, 475 U.S. at 775 (In non-public concern, non-public plaintiff defamation case, First Amendment does not bar application of mere negligence standard for defamation); Dun & Bradstreet v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985) (Powell, J., concurring).

3. Matter of Public Concern: Plaintiff Must Prove Statement is False.

Proof of falsity required when media defendant addresses topic of public concern; regardless of public/private status of plaintiff. Hepps, 475 U.S. at 775-76.

4. Actual Malice must be Shown by "Convincing Clarity."

Where the plaintiff is a public official, he must prove actual malice or reckless disregard of the truth with "clear and convincing proof". New York Times v. Sullivan, 376 U.S. 254, 286 (1964); Gertz, 418 U.S. at 342; Hepps, 475 U.S. at 773.

5. Falsity May Have to Shown by "Convincing Clarity."

Public figure plaintiffs may have to prove falsity by "clear and convincing evidence" as protected under New York Times v. Sullivan. Sharon v. Time, Inc., 599 F. Supp. 538, 558 (S.D.N.Y. 1984); Firestone v. Time Inc., 460 F.2d 712, 722 (5th Cir. 1972), cert. den., 409 U.S. 875 (Bell, J., specially concurring).

6. Who is a Public Official or Public Figure?

Public Official. Governmental policy-makers are public officials, while public employees generally are not public officials. The Minnesota Supreme Court has laid out a test to determine who is, and is not, a public official:

(1) whether plaintiff performs governmental duties directly related to the public interest;
(2) whether plaintiff holds a position to influence significantly the resolution of public issues; and
(3) whether the plaintiff has, or appears to the public to have, substantial responsibility for or control over the conduct of government affairs.

Britton v. Koep, 470 N.W.2d 518, 522 (Minn. 1991). In Britton, the Minnesota Supreme Court held that a public roads department supervisor was not a public official, and did not have to prove actual malice.

Public Figure. A "public figure" is a person who is publicly prominent, so much so that discussion or commentary about that person amounts to a "public concern." However, such persons are not necessarily public figures for any purpose: status as a public figure may only extend to the particular area in which they are publicly prominent. Examples: Michael Jordan or Donald Trump. The extent of a person's status as a public figure will be subject to extensive litigation in each case.

The U.S. Supreme has established some guidelines on who constitutes a public figure:

(1) Involuntary Public Figure: become public figure through no purposeful action of their own, including those who have become especially prominent in the affairs of society;
(2) Always Public Figures: those who occupy position of such persuasive power and influence that they are deemed public figures for all purposes;
(3) Public Figures on Specific Issues: "those who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved."

Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

7. Right to Petition for Grievance Creates Privilege against Defamation

Statements made to the government and its representatives, in the course of petitioning the government for redress of grievances, are absolutely protected from defamation claims under the Noerr-Pennington doctrine. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961) and United Mine Workers of America v. Pennington, 381 U.S. 657 (1965). "[T]his deference to the right to petition [applies] not only in antitrust cases but in other cases involving civil liability." Gorman Towers, Inc., v. Bogoslavsky, 626 F.2d 607, 614-15 (8th Cir. 1980).

C. Qualified Privileges.

A defamatory statement is protected by a qualified privilege if "made upon a proper occasion, from a proper motive, and . . . based upon reasonable or probable cause." Brooks v. Doherty, Rumble & Butler, 481 N.W.2d 120, 124-25 (Minn. App. 1992) (citing Stuempges v. Park, Davis & Co., 297 N.W.2d 252, 257 (Minn. 1980). Examples: an employer's response to unemployment claims, workers' compensation claims, or a response to a request for verification of employment.

The question of whether qualified privilege applies is a question of law decided by the court. Keenan v. Computer Assoc. Int'l, Inc., 13 F.3d 1266, 1270 (8th Cir. 1994); the factual basis for any "reasonable and proper grounds" for the statement is a jury question. Id.

The plaintiff may typically only overcome a qualified privilege by showing actual malice. It is the plaintiff's burden to show that the defendant did not have "reasonable and proper grounds" for the allegedly defamatory statement.

D. Opinion Defense.

The First Amendment protects statements of opinion, as distinct from statements of fact, against claims of defamation. However, the test is not the author's mere characterization of the statement as "opinion." Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). A statement is an opinion when:

(1) the statement addresses matters of public concern;
(2) the statement expressed in a manner that is not provably true or false; and
(3) the statement cannot be reasonably interpreted as intended to convey actual facts about a person.

Id. at 17.

In addition, the U.S. Supreme Court articulated some standards to assist in determining whether a statement is intended to convey an actual fact about a person, or not:

(1) is the language loose, figurative, or hyperbolic, which would negate the impression that the speaker was seriously maintaining the truth of the underlying facts?
(2) Does the general tenor of the article negate the impression that the speaker was seriously maintaining the truth of the underlying fact? and
(3) is the connotation sufficiently factual to be susceptible of being proved true or false.

Id. at 21.

Milkovich cut back on First Amendment protection for opinions as a matter of federal law. But federal law only sets a constitutional floor below which state law cannot go. Nothing prevents states from providing more protection to opinions than the First Amendment requires.

Minnesota courts apply the four-factor test used by the U.S. Court of Appeals in Janklow v. Newsweek, Inc., 759 F.2d 644, 648 (8th Cir. 1985), cert. den., 479 U.S. 883 (1987) to determine whether statements are opinion or not (Janklow was decided prior to Milkovich). Hunt v. Univ. of Minnesota, 465 N.W.2d 88, 94 (Minn. App. 1991). Janklow involved a suit by the sitting Governor of South Dakota against Newsweek magazine, for repeating allegations regarding his possible sexual relations with a 14-year old Indian girl while he was a lawyer on a reservation. Newsweek successfully defended the claim on the grounds that the alleged defamatory statement had been expressed as the opinion of the author. The Janklow test to determine if a statement is an opinion is as follows:

(1) How precise and specific is the statement?
(2) Is the statement verifiable?
(3) What is the literary and social context of the statement
(4) What is the public context of the statement?

If a statement is determined to be an opinion, then it cannot be the subject of a defamation suit. The reason is that opinions are not capable of being proven true or false, and the plaintiff cannot therefore prove one of the elements of a defamation claim. "[S]tatements regarding matters of public concern which are not sufficiently factual to be capable of being proven true or false, and statements which cannot be reasonably interpreted as stating actual facts are absolutely protected." Hunt, supra, 465 N.W.2d at 94.

E. Consent as a Defense.

"[T]he consent of another to the publication of defamatory matter concerning him is a complete defense to his actions for defamation." RESTATEMENT (SECOND) OF TORTS �� 583. See also LaBaron v. Board of Public Defense, 499 N.W.2d 39, 42 (Minn. App. 1993).

While consent is an absolute defense to defamation, it arises rarely in practice.

F. Legal Obligation to Publish is an Absolute Defense to Defamation.

If a defendant was legally required to publish the allegedly defamatory statement, they cannot be held liable for defamation. See LaBaron, 499 N.W.2d at 42. Responses to court subpoenas, formal requests for information from government agencies, and the like fall into this category.

G. Privileges Created by Statute may bar Defamation Claims.

Statements made pursuant to privileges created by state or federal statute are protected by a qualified privilege. For examples, Minnesota statute �� 181.933 requires an employer to provide the reasons for discharge to an employee who has been fired, within five working days after a written request. See also the Minnesota Anti-SLAPP statute, Minn. Stat. �� 554.01 et seq., which creates a privilege in statements made in the course of public participation in governmental affairs.

III. Practical Methods of Reducing Liability for Defamation

A. Due Diligence

1. Investigate the Facts.

Even basic investigations can go a long way towards reducing defamation liability. Publishing material as "fact" without doing any investigation by itself might amount to reckless disregard for the truth. To avoid liability, you don't have to establish the truth of the statement for all time; rather, you should do enough to satisfy yourself that the facts alleged are probably true in your reasonable judgment.

2. Establish Neutral Criteria for Publication.

How do you decide when to publish a story? Establish some guidelines for publication, before you're faced with a controversial situation. Again, the absence of any guidelines for publication might be used as evidence of "reckless disregard for the truth."

The guidelines you use must be reasonable and should reflect the appropriate professional standards of journalism.

3. Follow the Criteria You Establish.

Failure to follow the criteria you establish might be viewed as recklessness. If you do depart from your guidelines, make sure you have a good reason to do so.

4. Don't Knowingly Use Unreliable Sources.

Use common sense. Be aware when people have obvious axes to grind. If an unreliable or uncertain source presents you with a good story, take special care to verify or corroborate the story before publication.

5. Retain Records of Your Investigation.

In order to defeat a claim of recklessness, it is extremely helpful to document the facts and procedures of the investigation. The main way of doing that is to preserve the notes, records, and other material related to an investigation. Establish a general policy of records retention. Keep the records until the statute of limitations on defamation runs out. In Minnesota this is two years from the date of publication. Minn. Stat. �� 541.07.

B. Confirm the Identity of the Subject of Your Article.

Many defamation problems may be headed off by calling the subject of the article for confirmation or denial. If the subject chooses to talk to you, you will get their side of the story. Getting this information may cause you to modify the article you are about to run. Certainly you can claim a good faith effort to determine the truth if you contact the subject. If the subject refuses to speak with you, at the very minimum you've made a good faith effort.

Attempting to contact the subject helps avoid any identification problems about the subject. Many names are quite common, and contacting the subject will confirm that you're dealing with the right person. At a minimum, you might try to get the subject to confirm the exact spelling of their name, which also acts as a check on identity.

Be skeptical of public records. Many public records also reflect the confusion of common names, and the only real guarantee of accuracy in public records is the skill of the typist who entered the data in the computer.

C. Use Quoted Material Whenever Possible.

Often more controversial material should be presented in the form of a quotation. The person being quoted takes the risk of a defamation claim. You should not use a quote if you believe that that quote is false, and you can't knowingly or recklessly print false information simply by putting the words in someone's mouth.

Cite the person giving you the quotation. Often the identity of a person making a statement is more newsworthy than the quote itself.

D. Avoid Conclusory Language.

Report facts, not conclusions. If there is any conclusions to be drawn from the facts, the reader will draw them. For example, suppose a public official has committed several acts which tend to show that they might be dishonest. DO NOT REPORT that the public official is "dishonest" without qualification. Even though that might be a reasonable conclusion based on the facts, it is not a fact itself.

Do not take sides in evaluating disputed facts. You can compare and contrast differing versions of events with each other in a news story, but do not state unequivocally that one side or the other is lying, or that one side or the other is factually incorrect. That is an opinion, and should be qualified as such. As an opinion, it should not appear in a news story where a reader may confuse it with a factual report.

Instead of "Mrs. Smith is lying because the videotape at the scene shows the officer was courteous" you might say: "Mrs. Smith's account is contradicted by the videotape from the officer's car. The videotape appears to show that the officer acted courteously. Mrs. Smith denied assaulting the officer even after she was confronted with the videotape and hospital records showing medical treatment of slap marks on the officer's right cheek."

E. Counteract Any Bias

Be aware of the newspaper's political opponents. In dealing with news about such persons, take special care to demonstrate good faith regard for the truth of the statements you print. Often actual malice can be proven by showing one side has a grudge against the other.