John J. Walsh
Senior Counsel - Carter Ledyard & Milburn LLP
Defamation, Privacy and Data Protection
The law of Defamation is not uniform throughout the United States.
Each of the 50 American states (and the District of Columbia) has its own legal system, including its own body of tort law – largely derived from Common Law but modified by state legislative action and judicial supervision. That said, each state’s power to individualize its defamation laws is significantly constrained by the American constitution. The First Amendment prohibits the “abridging [of] freedom of speech, or of the press,” a prohibition which the United States Supreme Court has interpreted to impose specific limits on the ability of plaintiffs to prove and collect damages for defamation.
As a result, a defamation plaintiff in an American court must prove that the allegedly defamatory statement is false and that the defendant was at fault for publishing it. “Fault,” in the case of a government official or a “public figure,” means that the defendant published the defamatory statement with “actual malice” – which means that he knew it was false or at least recklessly disregarded whether it was true or false. The First Amendment also requires a defamation plaintiff to prove “actual injury” to obtain damages and rarely permits injunctive relief against publication, even after a verdict for the plaintiff.
These “extra” elements of a claim of defamation are largely the result of a set of rulings by the U.S. Supreme Court, beginning with a seminal case decided in 1964 – New York Times Co. v. Sullivan.
The tort of defamation consists of both libel (written statements) and slander (oral statements). In an action for slander, the plaintiff must prove special damages, namely proof of actual pecuniary loss, unless the statement complained of falls into one of the four “per se” categories of defamation requiring no proof of special damage: allegations that (1) plaintiff committed a crime, (2) are likely to cause damage to reputation, (3) plaintiff suffers from a loathsome disease or disorder; or (4) allege serious misconduct.
In Sullivan, the Supreme Court balanced the importance of permitting persons to seek reputational vindication by suing publishers of defamatory statements as against the constitutional guarantee of a free speech and free press. That is, court defamation judgments penalize a form of expression, albeit defamatory expression, and thus potentially infringe the First Amendment’s prohibition on governmental restriction of free speech. The Supreme Court balanced these competing social values by holding that public officials could recover damages in defamation suits relating to official conduct only if they could prove “actual injury” and “actual malice” (a false statement published “with knowledge that it was false or with reckless disregard of whether it was false or not.”) The Court later expanded the category of defamation plaintiffs required to prove “actual malice” to non-governmental “public figures,” including persons with the power to command the public’s attention to rebut false charges (general public figures) and those who had voluntarily become involved in a public controversy to influence its outcome (limited purpose public figures).
In these “public” plaintiff cases the plaintiff must prove by “clear and convincing evidence” that the challenged statement was known to be false, or made “recklessly,” i.e. with a “high degree of awareness of its probable falsity,” or while entertaining “serious doubt” about the truth of the statement. Thus, actual malice is not the same thing as common law malice (e.g. ill-will). Indeed, purposeful avoidance of the truth or deliberate alteration of quoted material resulting in a material change of meaning may constitute “actual malice.” That said, ‘actual malice’ is often difficult to prove, resulting in the not infrequent failure of many defamation lawsuits brought by public figures in American courts.
Contrary to the approach of many countries where the defendant carries the burden of proving truth (“justification”), in America, the plaintiff almost always carries the burden of proving falsity. This is a constitutionally mandated requirement regardless of whether the Plaintiff is a public or private figure, whenever the defamation involves media reports on matters of public concern. In these cases, the US Constitution makes falsity an element of the plaintiff’s claim.
Statute of Limitations. Statutes of limitations typically require actions to be commenced within one year after the first general publication of the defamatory statement. Release of new, differently formatted editions of the publication or one directed to a different audience may start a new limitations period; e.g., in New York, release of a paperback edition of a previously released hardcover.
Opinion and Fair Comment. Every state allows as a defense a plea similar to honest opinion under English law. That is, a plaintiff alleging defamation must prove the making of a false statement of fact, and in this light, expressions of opinion, no matter how offensive, are rarely actionable. Statements of opinion that “imply an assertion of objective fact” capable of being proven true or false are actionable. Also actionable are statements of opinion which imply they are based on undisclosed facts known to the author. However, opinions based on facts stated within the same publication are protected as subjective interpretations. Statements not provably true or false, or which the reasonable reader could not interpret as assertions of fact, are not actionable. Likewise, statements that can be classified as “rhetorical hyperbole” or “lusty and imaginative” expression are not actionable.
Most American states recognize various “privileges” that provide absolute or qualified immunity to the publisher of an otherwise defamatory statement. For example, a privilege is afforded to fair and accurate reports of judicial, legislative or other official proceeding. In a few American jurisdictions, courts have carved a more expansive “neutral reportage” privilege out of the fair report privilege, immunizing disinterested reports of false allegations made by a responsible party on matters of public concern. However, many American courts have declined to recognize this privilege. Depending on the American state whose law is being applied, these reportage privileges can be either absolute or qualified. If they are the latter, that means that the privilege cannot be secured, even if otherwise applicable, if the speaker published the defamatory statement with common law malice (i.e. hatred or ill-will), ‘actual malice’, or common law recklessness (conscious disregard of a known risk of inaccuracy). Statements made between persons sharing a “common interest” may also have a qualified privilege.
The U.S. constitution does not protect reporters from revealing their sources. A New York Times reporter, a recipient of a government leak, was jailed for contempt of court for failure to reveal her source to a federal grand jury. To avoid such results, a majority of states have enacted ‘shield laws’ to enable journalists to protect their sources and such protections have also been read into some state constitutions. Some shield laws are “absolute,” in their application, others are subject to satisfaction of qualifying factual tests.
While the remedies for a defamatory statement can include both monetary damages and injunctive relief, in the U.S.. injunctive relief is rarely obtainable on the theory that it would be an unconstitutional ‘prior restraint,’ of speech prohibited by the First Amendment.
Under American law a defamation plaintiff can recover compensatory damages for ‘actual injury’ without proof of ‘actual malice,’ but presumed damages and punitive damages are recoverable only on proof of that high level of fault. Damages for proven, actual injury, including injury to reputation, can be awarded absent ‘actual malice.’ Presumed injury, established when the elements of defamation are met, is available in some states when the speech in question is not a matter of public concern or when ‘actual malice’ is established. Punitive damages are recoverable only if the plaintiff can prove that the defendant published with both ‘actual malice’ and common law malice, which can include reckless disregard for the rights of the plaintiff.
Some 33 states also have ‘retraction statutes.’ These laws generally require a defamation plaintiff to ask a media defendant for a retraction of the allegedly defamatory publication, as a condition to claiming damages, and sometimes before litigation may be commenced. A timely retraction by the defendant usually will limit a plaintiff’s damages, whether statutory or not.
Aa defamation plaintiff can bring his action only in those states where courts can assert personal jurisdiction over the defendant. The Supreme Court has made clear that personal jurisdiction is determined without deference to any First Amendment considerations. The Supreme Court held that the circulation of 10,000 copies of a national magazine in a state satisfied the personal jurisdiction requirement of due process under the 14th Amendment and entitled the plaintiff to proceed against the non-resident publisher in the state. Other courts have found even lower circulation numbers sufficient for jurisdiction over non-resident media defendants.
The internet has created a new set of issues related to jurisdiction. In general, jurisdiction is available when a web page is directed to people within a state with the intent of engaging in business or other activities that create a potential cause of action. The absence of a discernible effort to serve a market in the forum state will usually defeat personal jurisdiction. However, the physical presence of servers in a state may provide jurisdiction, on the theory that they constitute a distribution hub. Courts have been reluctant to consider web-based interactivity to expand their jurisdiction to out of state torts.
The Supreme Court has held that libel of a public official or public figure cannot be punished criminally unless the requirements of New York Tinies Co. v. Sullivan are met: the statements must be proven to be false and published with ‘actual malice.’ Criminal prosecutions for libel are exceedingly rare and, in the post-Sullivan era, greeted with scepticism. In most states, criminal libel statutes have either been repealed or struck down as unconstitutional by the courts.
The right of privacy is well established in a majority of states. Privacy torts include: (1) intrusion on privacy; (2) false light (publicizing highly offensive falsehoods); (3) public disclosure of private facts; and (4) misappropriation (using the name or likeness of another for profit).
Subject to state laws, invasion of privacy is committed when anyone “unreasonably and seriously interferes with another’s interest in not having his affairs known to others.” It is a right of action where damage is presumed. Certain defenses are similar to those applicable to libel under English law, for example: (a) consent to publication; (b) qualified privilege (in relation to any communication privileged at common law); and (c) fairly published information where the subject matter is legitimate news in view of the plaintiff’s prominence or his activities. The First Amendment has been held to qualify the right to privacy. In a leading case, the court found that publication of truthful, lawfully obtained facts is protected by the First Amendment against an action based on a state law forbidding publication of rape victims’ names and on the right to privacy.
Intrusion actions are often based on methods used to obtain information. Intrusion has been successfully invoked by persons recorded on hidden cameras by television news magazines and their private or workplace conduct displayed on national television. In one case in California, an employee was found to have a ‘reasonable expectation of privacy’ that his workplace conversations with fellow employees would not be broadcast on national television.
False light actions brought by public figures against media defendants are subject to the ‘actual malice’ requirement. However, subject to state laws, false light differs from defamation in that the plaintiff need only demonstrate mental or emotional distress rather than actual harm to reputation. Insinuations, as well as explicit falsehoods, suffice to expose a defendant to liability.
Public disclosure of private facts involves the publication of true but private facts, often related to the plaintiff’s sexuality, health or long past behaviour. Facts obtained from court records open to public inspection cannot be the basis of a public disclosure suit. Establishing that facts are ‘newsworthy’ will similarly defeat a public disclosure claim.
Appropriation of a person’s name or likeness for monetary gain constitutes an invasion of privacy, sometimes called the right of publicity. A New York statute provides that no person’s name or image shall be used for advertising purposes or for the purposes of trade without written consent. The Supreme Court has suggested that the First Amendment may place restrictions on recovery under the right of publicity, although in the leading case the Court held that the First Amendment does not protect the broadcast of a performer’s entire act.
In general, as a practical matter, the right of privacy is invoked by non-public figures when they feel the media have somehow exploited them while the right of publicity is invoked by celebrities who feel that the media have deprived them of their right to control and profit by the commercial use of their likeness or name.
The acronym stands for “Strategic Lawsuit Against Public Participation.” Originally conceived as a means of protecting members of the public who engage in public advocacy against lawsuits designed to halt or chill future speech, they have expanded broadly in their reach. As enacted by 31 states and the District of Columbia, many of them are deployed by major media organizations to secure early dismissal of defamation claims based on the content of news reports, TV and radio shows, books, social media posts and other forms of information dissemination. The laws provide for a motion to strike a complaint shortly after filing unless the plaintiff points to evidence that would be legally sufficient to permit a jury to rule for the plaintiff. If the motion is successful, and they often are, the plaintiff may be required to pay the defendant’s attorneys’ fees, and in some states, a statutory penalty.
The trend toward the enactment of broad Anti-SLAPP statutes is illustrated by the 2021 revisions of New York’s statute. It now assigns to plaintiffs, regardless of their “public” status, the burden of proving actual malice – except where the defamatory content involves a “purely private” matter. This may be the beginning of a trend to similar legislation in other U.S. states.
Section 230 of the Communications Decency Act. This federal law has been interpreted by US courts to provide absolute immunity to Internet Service Providers (Google, Facebook, Twitter and thousands more) against liability for publishing defamatory content supplied by third party users of their sites. Originally conceived as a means of nurturing the growth of the Internet as a benefit to society, some are now questioning its broad application to obviously harmful content, but it continues to be a major defensive weapon deployed by ISP’s of all types and sizes.
The Speech Act. Another federal law, this Act bars enforcement in both state and federal courts in the U.S. of any libel judgment of a foreign court unless it was obtained under laws and procedures which provide as much protection to the defendant as do the First Amendment’s free speech and press provisions – a difficult test to meet. Alternatively, if it can be shown that, regardless of the country’s laws, the judgment was in fact based on evidence that would meet US standards, the judgment may be enforced in a US court with jurisdiction over the defendant or her assets. Counsel considering an action outside the US against such a defendant would be wise to present evidence that would meet US standards, even if not required in the jurisdiction of the lawsuit.
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The material in this Guide is for general information only and does not constitute legal advice.
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