Every time you publish something online, whether it's a news article, blog post, podcast, video, or even a user comment, you open yourself up to potential legal liability. This shouldn't come as too much of a surprise because the Internet, after all, is available to anyone who wishes to connect to the network, and even the smallest blog or most obscure discussion forum has the potential to reach hundreds of millions of people throughout the world.
Often the legal risks are small, but not always. The risks you could face when you publish online can take a number of forms, depending on what and how you publish. The sections that follow are not intended to make you an expert on media law, but merely to help you identify potential "red flags" so that when you publish something that might result in liability, you will know to be extra careful and will take the necessary steps to minimize your potential legal risks.
Let's start with the more obvious risks.
First, if you publish information that harms the reputation of another person, group, or organization, you may be liable for "defamation" or "false light." Defamation is the term for a legal claim involving injury to reputation caused by false statements of fact and includes both libel (typically written or recorded statements) and slander (typically spoken statements). False light, which is similar to defamation, generally involves untrue factual implications. The crux of both of these claims is falsity; truthful statements and implications that harm another's reputation will not create liability, although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature. We explain the details of defamation and false light and provide some practical tips for avoiding defamation and false light claims in the section on Publishing Information that Harms Reputation.
Second, if you publish private or personal information about someone without their permission, you potentially expose yourself to legal liability even if your portrayal is factually accurate. For example, in most states you can be sued for publishing private facts about another person, even if those facts are true. The term "private facts" refers to information about someone's personal life that has not previously been revealed to the public, that is not of legitimate public concern, and the publication of which would be offensive to a reasonable person. This would include such things as writing about a person's medical condition, sexual activities, or financial troubles.
If you use someone else's name, likeness, or other personal attributes without their permission for an exploitative purpose you could also face liability for what is called misappropriation or right of publicity. Usually, people run into trouble in this area when they use someone's name or photograph in a commercial setting, such as in advertising or other promotional activities. But, some states also prohibit use of another person's identity for the user's own personal benefit, whether or not the purpose is strictly commercial. We discuss the details of misappropriation/right of publicity and private facts claims and provide some practical tips for avoiding these claims in the section on Publishing Personal and Private Information.
Third, if you have web forums, allow reader comments, host guest bloggers on your site, or if you repost information that you receive from RSS feeds, section 230 of the Communications Decency Act (“CDA 230”) will likely shield you from liability for problematic statements made by your users, guests and other third-parties. This important federal law protects you from tort liability for statements contained in these materials – and any other user-submitted content – you publish on your site. You will not lose this immunity even if you edit this content, whether for accuracy or civility, and you are entitled to immunity so long as your edits do not substantially alter the meaning of the original statements. Keep in mind that CDA 230 will only protect you if a third-party – not you or your employee or someone acting under your direction – posts something on your blog or website. It does not shield you from liability for your own statements. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fourth, if you publish or use the creative work of others, their trademarks, or certain confidential business information without the permission of the owner, you may be exposing yourself to legal liability for violations of intellectual property law. Fortunately, if you allow your site's user to post this type of content you can protect yourself from copyright infringement claims under the Digital Millennium Copyright Act (DMCA), so long as you establish effective "notice-and-takedown" procedures, promptly remove content when a copyright owner notifies you that it is infringing, and have no knowledge that the material in question is infringing. We cover liability associated with copyright, trademark, and trade secrets, as well as the procedures you should follow under the DMCA, in the section on Intellectual Property.
Lastly, as you publish your work online you may want to correct things you have previously published. Your willingness to fix past errors in your work will provide several benefits. It will make your work more accurate and reliable and will likely diminish your liability for defamation and other potential legal claims. We explain the benefits of correcting your errors and provide some practical tips for handling requests to correct or remove material in the section on Correcting or Retracting Your Work After Publication.
When you publish online, whether it's on a blog, in a podcast, in a video you upload to YouTube, or simply in a comment on another's website, you might say or do something that harms the reputation of another person, group, or organization. Fortunately, not everything you publish that harms the reputation of others will open you up to legal liability. For example, you won't generally face legal liability if you simply state your opinion, even if your opinion is harsh, critical, or wildly off-base.
Nevertheless, if you find yourself about to publish something that could harm another's reputation, you should spend some time familiarizing yourself with the various laws that protect reputation. The sections that follow are not intended to make you an expert on libel law, but merely to help you identify potential "red flags" so that when you publish something that might negatively impact the reputation of another person, group, or organization, you will know to be extra careful and will take the necessary steps to minimize your potential legal liability.
First, ask yourself whether what you intend to publish would UPSET YOU if someone else were to publish the information about you. This simple test won't tell you for sure whether you will be liable if the information you publish turns out to be false, but it will get you focused on the statements that should be of greatest concern. Moreover, putting aside the legal implications of what you publish, statements that upset others are more likely to draw their ire and result in a lawsuit, even when they don't actually have a viable legal claim. Depending on what you say and how you say it, you will likely need to be concerned with two different, but related, legal doctrines that aim to protect against reputational harm:
Keep in mind that the republication of someone else's words can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).
However, there is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
So, what should you do if you are facing the prospect of a lawsuit for defamation or false light?
First, familiarize yourself with the section on Practical Tips for Avoiding Liability Associated with Harms to Reputation. While you can't always eliminate your legal risks when publishing online, there are a number of ways you can minimize the likelihood of your being on the receiving end of a defamation or false light lawsuit.
Second, if you think you've been improperly sued in retaliation for your speaking out on a public issue or controversy, you may be able to get the case dismissed or file a counter claim under your state's law protecting against Strategic Lawsuits Against Public Participation (SLAPP). If you are sued in a state that has an anti-SLAPP law, you may be able to end the lawsuit quickly and recover your costs and attorneys' fees.
Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).
Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can -- and often do -- vary from state to state. Accordingly, you should consult your state's law in the State Law: Defamation section of this guide for specific information.
Generally speaking, a person who brings a defamation lawsuit must prove the following:
Keep in mind that the republication of someone else's defamatory statement can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).
On the other hand, if you repeat what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect you provided you attribute the information you gathered and are accurate in your reporting. See the section on Defamation Privileges and Defenses for information on this, and other, privileges.
There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Damages for Defamation
In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize "per se" defamation, where damage is presumed if the defamatory statement relates to one of the following subjects:
See the State Law: Defamation section of this guide for specific information on what each state recognizes.
If a plaintiff succeeds in proving defamation, he or she is entitled to recover what is called compensatory damage, which is the payment of money to compensate the plaintiff for the wrong that has been done. This includes not only out-of-pocket expenses (e.g., doctor's bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant.
Note that some states require that a plaintiff must first ask the defendant to correct or remove the defamatory statement in order to be entitled to certain types of damages. See the section on Correcting or Retracting Your Work After Publication for more information.
In order to be actionable, a defamatory statement must be "of and concerning" the plaintiff. This means that a defamation plaintiff must show that a reasonable person would understand that the statement was referring to him or her. Of course, if a blog post or online article identifies the plaintiff by name, this requirement will be easily met. The plaintiff need not be specifically named, however, if there are enough identifying facts that any (but not necessarily every) person reading or hearing it would reasonably understand it to refer to the plaintiff. For example, a statement that "a local policeman who recently had an auto accident had been seen drinking alcohol while on duty" would likely be actionable because the policeman could be identified based on his recent accident.
Accordingly, defamatory statements about a group or class of people generally are not actionable by individual members of that group or class. There are two exceptions to this general rule that exist when:
See Restatement (2d) of Torts, § 564A (1977).
As to the first exception -- statements about a small group -- courts have often held that an individual group member can bring a claim for defamation for statements directed at a group of 25 or fewer people. The 25-person line is not a hard-and-fast rule, but rather the way courts commonly distinguish between a group small enough for statements about the whole group to be imputed to individual members and one that is too large to support such an imputation.
The case of Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y. 1952), provides a good illustration of this general rule. In that case, the defendants wrote that "most of the [Neiman-Marcus] sales staff are fairies" and that some of the company's saleswomen were "call girls." Fifteen of the 25 salesmen and 30 of the 382 saleswomen at the store brought suit for defamation. Applying New York and Texas law, the court held that the salesmen had a valid cause of action, but the saleswomen did not. Even though the statement referred to "most of" the salesmen, without naming names or specifying further, the statement could be understood to refer to any individual member of this small group. The group of saleswomen, however, was so large that a statement that some of them were "call girls" would not be understood as referring to any individual member of the group.
As to the second exception to the rule against group libel -- when circumstances point to a particular individual -- courts have allowed defamation claims where the statement is facially broad, but the context makes it clear that it referred to the plaintiff. For example, Bill Blogger may be able to claim defamation based on the statement "all bloggers who attended the most recent city council meeting payed bribes to the mayor," where Bill is the only blogger who attended the meeting and readers will therefore understand the statement as being a thinly veiled indictment of him.
A company or organization can be a defamation plaintiff. In fact, the largest jury verdict every awarded in a libel case came in a case brought by a business plaintiff.
Note that each state decides what is required to establish defamation, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.
Fictional Works
A person may claim defamation by a literary or dramatic work intended as fictional if the characters in the work resemble actual persons so closely that it is reasonable for readers or viewers to believe that the character is intended to portray the person in question. A disclaimer that the work is fiction and does not depict any persons living or dead will not automatically foreclose a defamation claim, but it is still a good idea and may be used as evidence as to whether readers or viewers would be reasonable in concluding that it is a depiction of the plaintiff.
A defamatory statement is a false statement of fact that exposes a person to hatred, ridicule, or contempt, causes him to be shunned, or injures him in his business or trade. Statements that are merely offensive are not defamatory (e.g., a statement that Bill smells badly would not be sufficient (and would likely be an opinion anyway)). Courts generally examine the full context of a statement's publication when making this determination.
In rare cases, a plaintiff can be “libel-proof”, meaning he or she has a reputation so tarnished that it couldn’t be brought any lower, even by the publication of false statements of fact. In most jurisdictions, as a matter of law, a dead person has no legally-protected reputation and cannot be defamed.
Defamatory statements that disparage a company's goods or services are called trade libel. Trade libel protects property rights, not reputations. While you can't damage a company’s "reputation," you can damage the company by disparaging its goods or services.
Because a statement must be false to be defamatory, a statement of opinion cannot form the basis of a defamation claim because it cannot be proven true or false. For example, the statement that Bill is a short-tempered jerk, is clearly a statement of opinion because it cannot be proven to be true or false. Again, courts will look at the context of the statement as well as its substance to determine whether it is opinion or a factual assertion. Adding the words "in my opinion" generally will not be sufficient to transform a factual statement to a protected opinion. For example, there is no legal difference between the following two statements, both of which could be defamatory if false:
For more information on the difference between statements of fact and opinion, see the section on Opinion and Fair Comment Privileges.
Defamation Per Se
Some statements of fact are so egregious that they will always be considered defamatory. Such statements are typically referred to as defamation "per se." These types of statements are assumed to harm the plaintiff's reputation, without further need to prove that harm. Statements are defamatory per se where they falsely impute to the plaintiff one or more of the following things:
See Restatement (2d) of Torts, §§ 570-574. Keep in mind that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.
It is important to remember that truth is an absolute defense to defamation, including per se defamation. If the statement is true, it cannot be defamatory. For more information see the section on Substantial Truth.
Unlike other countries that hold a publisher liable for every defamatory statement regardless of what steps he or she took prior to publication, under U.S. law a plaintiff must prove that the defendant was at fault when she published the defamatory statement. In other words, the plaintiff must prove that the publisher failed to do something she was required to do. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.
Celebrities, politicians, high-ranking or powerful government officials, and others with power in society are generally considered public figures/officials and are required to prove actual malice. Unlike these well-known and powerful individuals, your shy neighbor is likely to be a private figure who is only required to prove negligence if you publish something defamatory about her. Determining who is a public or private figure is not always easy. In some instances, the categories may overlap. For example, a blogger who is a well-known authority on clinical research involving autism may be considered a public figure for purposes of controversies involving autism, but not for other purposes.
We discuss both of these standards and when they apply in this section.
In a legal sense, "actual malice" has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined "actual malice" in the defamation context as publishing a statement while either
It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.
Not surprisingly, this is a very difficult standard for a plaintiff to establish. Indeed, in only a handful of cases over the last decades have plaintiffs been successful in establishing the requisite actual malice to prove defamation.
The actual malice standard applies when a defamatory statement concerns three general categories of individuals: public officials, all-purpose public figures, and limited-purpose public figures. Private figures, which are discussed later in this section, do not need to prove actual malice.
The "public officials" category includes politicians and high-ranking governmental figures, but also extends to government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of government affairs. Courts have interpreted these criteria broadly, extending the public figure classification to civil servants far down the government hierarchy. For example, the supervisor of a county recreational ski center was held to be a "public official" for purposes of defamation law. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Some courts have even extended the protection to all individuals engaged in matters of public health, such as hospital staff, given the importance of health issues for the general public. See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).
In general, if an individual is classified as a public official, defamatory statements relating to any aspects of their lives must meet the actual malice standard of fault for there to be liability. Moreover, even after passage of time or leaving office, public officials must still meet the actual malice standard because the public has a continued interest in the misdeeds of its leaders.
There are two types of "public figures" recognized under defamation law: "all-purpose" public figures and "limited-purpose" public figures.
All-purpose public figures are private individuals who occupy "positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). For these individuals, the actual malice standard extends to virtually all aspects of their lives.
This category includes movie stars, elite professional athletes, and the heads of major corporations. Tom Cruise is one; that character actor you recognize instantly but can't quite name is probably not an all-purpose public figure.
As with public officials, the passage of time does not cause this class of individuals to lose their public figure status as long as the original source of their fame is of continued interest to the public.
Limited-Purpose Public Figures
The second category of public figures is called "limited-purpose" public figures. These are individuals who "have thrust themselves to the forefront of particular controversies in order to influence the resolution of the issues involved." Gertz v. Robert Welch Inc., 418 U.S. 323 (U.S. 1974). They are the individuals who deliberately shape debate on particular public issues, especially those who use the media to influence that debate.
This category also includes individuals who have distinguished themselves in a particular field, making them "public figures" regarding only those specific activities. These limited-purpose public figures are not the Kobe Bryants, who are regarded as all-purpose public figures, but rather the journeymen basketball players of the league.
For limited-purpose public figures, the actual malice standard extends only as far as defamatory statements involve matters related to the topics about which they are considered public figures. To return to our basketball example, the actual malice standard would extend to statements involving the player's basketball career; however, it would not extend to the details of his marriage.
As regards figures who become prominent through involvement in a current controversy, the law is unfortunately rather murky. In general, emphasis is placed not on whether the controversy is a subject of public interest, but rather:
Keeping in mind the difficulty of making the determination of who is a limited-purpose public figure, we've collected the following cases which might be helpful. Courts have found the following individuals to be limited-purpose public figures:
Courts have found the following individuals not to be limited-purpose public figures (and therefore private figures):
Individuals who are considered to be limited-purpose public figures remain so as long as the public has an "independent" interest in the underlying controversy. Unlike all-purpose public figures, it is relatively easy for a limited-purpose public figure to lose his status if the controversy in which he is involved has been largely forgotten. But most will still maintain their status. For example, a woman who had publicly dated Elvis Presley over a decade earlier, but who had since married and returned to "private" life, was found to remain a public figure for stories related to her relationship with Presley. See Brewer v. Memphis Publishing Co., 626 F.2d. 1238 (5th Cir. 1980).
Evaluating Public Officials, Public Figures, and Limited-Purpose Public Figures
A public official is a person who holds a position of authority in the government and would be of interest to the public even if the controversy in question had not occurred.
See this Chart of Public vs Private Individuals for additional examples.
Defining who is a public figure for purposes of First Amendment protections is a question of federal constitutional law, and therefore the federal courts say on the matter is decisive and binding on state courts. Accordingly, state courts cannot remove public-figure status from those who have been deemed public figures by the federal courts, but states can broaden the scope of the the classification. For example, while the Supreme Court has not spoken on the status of educators, most states have recognized teachers as a class of public figures. But some states, for example California, have not done so. Consult your State Law: Defamation section for specific guidelines on your jurisdiction.
Those who are not classified as public figures are considered private figures. To support a claim for defamation, in most states a private figure need only show negligence by the publisher, a much lower standard than "actual malice." Some states, however, impose a higher standard on private figures, especially if the statement concerns a matter of public importance. You should review your state's specific law in the State Law: Defamation section of this guide for more information.
A plaintiff can establish negligence on the part of the defendant by showing that the defendant did not act with a reasonable level of care in publishing the statement at issue. This basically turns on whether the defendant did everything reasonably necessary to determine whether the statement was true, including the steps the defendant took in researching, editing, and fact checking his work. Some factors that the court might consider include:
While you can't reduce your legal risks entirely, if you follow good journalistic practices you will greatly reduce the likelihood that you will be found negligent when publishing a defamatory statement. Review the sections in this guide on Practical Tips for Avoiding Liability Associated with Harms to Reputation and Journalism Skills and Principles for helpful suggestions.
Review this list of examples to help understand the difference between public figures/officials, limited-purpose public figures, and private figures for purposes of defamation law.
| Name | Type |
|
Town
Mayor
|
Public Official (A mayor is an elected official and therefore is a public official for purposes of defamation law.)
|
|
George
W. Bush
|
Public Official (The President of the United States is an elected official and therefore is a public official for purposes of defamation law.)
|
|
Laura
Bush
|
Public Figure (The President’s wife is a person who has pervasive power and influence in society and is therefore a public figure for purposes of defamation law.)
|
|
Paris
Hilton
|
Public Figure (Well-known celebrities have pervasive power and influence in society and are therefore public figures for purposes of defamation law.)
|
|
Bill
Gates
|
Public Figure (As the head of a major corporation and one of the richest men in the world, Bill Gates is a public figure for purposes of defamation law.)
|
|
Roger
Clemens
|
Public Figure or Limited-Purpose Public Figure (Roger Clemens is a well-known athlete and likely to be considered a public figure; at a minimum, he would be a limited-purpose public figure as to issues involving sports.)
|
|
Local
expert on teen suicide
|
Limited-Purpose Public Figure (The expert would be a limited-purpose public figure because she has distinguished herself in this particular field.)
|
|
Church
pastor who decries abortion
|
Limited-Purpose Public Figure (The pastor would be a limited-purpose public figure because he thrust himself to the forefront of a particular controversy in order to influence the resolution of the issue.)
|
|
Local
grocery store manager
|
Private Figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.)
|
|
Your shy neighbor
|
Private figure (Individuals who do not qualify as public officials/figures or limited-purpose public figures are private figures.) |
As a general rule, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make your work more accurate and credible).
There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.
Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information you are performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Keep in mind, however, the privileges described below are not available in all circumstances or in every state, so you should also review your state's specific law in the State Law: Defamation section of this guide.
Possible privileges and defenses include:
"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill, 385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing evidence of a defamatory statement's falsity in order to prove defamation.
The law does not require that a statement must be perfectly accurate in every conceivable way to be considered "true." Courts have said that some false statements must be protected for the wider purpose of allowing the dissemination of truthful speech. The resulting doctrine is known as "substantial truth." Under the substantial truth doctrine, minor factual inaccuracies will be ignored so long as the inaccuracies do not materially alter the substance or impact of what is being communicated. In other words, only the "gist" or "sting" of a statement must be correct.
The substantial truth defense is particularly powerful because a judge will often grant summary judgment in favor of a defendant (thus disposing of the case before it goes to trial) if the defendant can show that the statement the plaintiff is complaining about is substantially true, making the defense a quick and relatively easy way to get out of a long (and potentially expensive) defamation case.
Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine, 501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate quotations were evidence of actual malice. The Supreme Court refused to adopt such a stringent rule, noting the difficulty of taking notes and translating from recordings and the need to edit a speaker's comments into a coherent statement. The Court stated:
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. (citations omitted)
The Court went on to note the use of quotation marks to directly attribute inaccurate statements to the speaker "bears in a most important way on [this] inquiry, but it is not dispositive in every case." Generally speaking, a publisher is given more leeway for inaccuracies when he is interpreting his sources than when he is purporting to be providing a "direct account of events that speak for themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).
Some examples of statements that courts have found to be "substantially true":
The right to speak guaranteed by the First Amendment to the U.S. Constitution includes the right to voice opinions, criticize others, and comment on matters of public interest. It also protects the use of hyperbole and extreme statements when it is clear these are rhetorical ploys. Accordingly, you can safely state your opinion that others are inept, stupid, jerks, failures, etc. even though these statements might hurt the subject's feelings or diminish their reputations. Such terms represent what is called "pure opinions" because they can't be proven true or false. As a result, they cannot form the basis for a defamation claim.
This is not to say that every statement of opinion is protected. If a statement implies some false underlying facts, it could be defamatory. For example, stating that "in my opinion, the mayor killed her husband" is not likely to be a protected opinion. Couching false statements of fact as opinion or within quotes from other sources generally won’t protect you either. Nor will trying to cover yourself by saying that a politician “allegedly” is a drug dealer, or that your neighbor said the politician “is a drug dealer,” or that in your opinion, the politician is a drug dealer. A reader may well assume you have unstated facts to base your conclusion on, and it would be a defamatory statement if the implied facts turn out to be false.
All opinions that rely on underlying facts, however, are not necessarily outside the opinion privilege. If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect. For example, if you were to say "In my opinion, Danielle is failing out of school" it would likely lead your readers to assume that there are some unstated facts you relied on to draw your conclusion. Such a statement would not be protected, as the privilege does not protect back door entry of facts as "opinion" through innuendo. On the other hand, if you state "In my opinion, Danielle is failing out of school because she is a blond and the only thing I ever see her do at the library is check Facebook," this provides the reader with the information you are basing the opinion on, and allows the reader to come to his own conclusion.
Compare the following two statements:
The first example states true, non-defamatory facts upon which a reasonable conclusion (that Carol is an alcoholic) is based, and also emphasizes the limits of your knowledge (that you only saw Carol five times). It would be protected as a statement of opinion. Under the second example, readers would likely assume that there are unstated, defamatory facts upon which your conclusion is based. Therefore it would likely fall outside of the privilege.
Keep in mind that even if you state the facts you are relying on for your opinion, but those facts turn out to be false, the privilege will not apply. For example, if you say that "In my opinion, Danielle is failing out of school because she failed biology," the privilege would not apply if she got a C in biology.
To determine whether a statement is an opinion or a fact, courts will generally look at the totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement. Under this test, the difference between an opinion and a fact often comes down to a case-by-case analysis of the publication's context.
Distinguishing Between Statements of Fact and Opinion
In general, facts are statements that can be proven true or false; by contrast, opinions are matters of belief or ideas that cannot be proven one way or the other. For example, "Chris is a thief" can be proven false by showing that throughout his entire life Chris never stole anything. Compare that statement with "Chris is a complete moron." The latter is an opinion (or, technically, "a pure opinion"), as what constitutes a moron is a subjective view that varies with the person: one person's moron is not necessarily the next person's moron. Put another way, there would be no way to prove that Chris is not a moron. If a statement is a "pure opinion," it cannot be the basis for a defamation claim.
Of course, it is not always easy to determine whether a statement is a pure opinion. As we noted above, opinions that imply false underlying facts will not be protected. For example, stating that "Chris is insane" could be both a fact and an opinion. It could mean Chris has been diagnosed with psychosis and needs to be hospitalized in a mental institution; this could be proven false. It could also mean that Chris has wacky ideas that one doesn't agree with, which is an opinion. In determining which meaning the statement should be given, courts often rely on context and common-sense logic (or to phrase it in legalese, the "totality of circumstances" of the publication). For example, if one called Chris insane in a forum post as part of a heated argument over politics, the statement would likely be interpreted as an opinion.
Some examples of protected opinions include the following:
Keep in mind, however, that you can't make a statement an opinion merely by prefacing it with "in my opinion." Saying that "in my opinion, Alex stole ten dollars from the church collection basket" would lead most listeners to conclude you had evidence that Alex had indeed stolen the money, and that you intend the statement as one of fact rather than opinion. The courts do not give protection to false factual connotations disguised as opinions.
Context and the Totality of the Circumstances
In general, courts will look at the context and medium in which the alleged defamation occurred. For example, a statement is more likely to be regarded as an opinion rather than a fact if it occurs in an editorial blog as opposed to a piece of investigative journalism. The wider context may also provide a framework for the court: during the McCarthy-era witch hunts of the 1950s, for example, courts routinely held that referring to someone as a "Communist" was defamatory; in the present day, "communist" has taken on a more generalized (if still often derogatory) political meaning, and courts would almost certainly find use of the word to be a protected opinion.
The Internet presents particular issues for the courts, as it is a medium where the lack of face-to-face contact can often make judging the actual meaning and context of a publication difficult. Courts are likely to take into account the particular social conventions of the Internet forum at issue in evaluating a statement's context.
But much remains to be determined, such as how the courts would handle the nature of many discussion forums. A 2001 case that dealt with the opinion privilege is worth quoting at length as an indication of the approach courts may well take in determining whether an online posting is a statement of opinion or fact. In regards to a post on a financial bulletin board site the court noted:
Here, the general tenor, the setting and the format of [the] statements strongly suggest that the postings are opinion. The statements were posted anonymously in the general cacophony of an Internet chat-room in which about 1,000 messages a week are posted about [the particular company]. The postings at issue were anonymous as are all the other postings in the chat-room. They were part of an on-going, free-wheeling and highly animated exchange about [the particular company] and its turbulent history. . . . Importantly, the postings are full of hyperbole, invective, short-hand phrases and language not generally found in fact-based documents, such as corporate press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).
In short, the court concluded that "the general tone and context of these messages strongly suggest that they are the opinions of the posters." Id. at 1267. It is likely that other courts will take a similarly broad view regarding Internet forums for purposes of the opinion privilege.
To summarize, the factors courts often use to determine whether a statement is a protected opinion are:
Note that each state decides what is required to establish defamation and what defenses are available, so you should review your state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.
The fair report privilege may protect you from liability -- even if you publish something that is defamatory -- if you relied upon a official public document or statement by a public official for the false information, made clear that the document or statement was your source, and fairly and accurately used the source. This privilege enables you to freely report, for example, about what people say during a council meeting or from the witness stand during a trial or to quote from public records.
The fair report privilege's historic rationale has been to encourage public scrutiny of governmental activities through fair and accurate reporting of governmental proceedings. The defense allows you to report on government activity without bearing the overwhelming burden of first proving the truth of everything said in government documents and proceedings.
Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:
Sources Covered By the Fair Report Privilege
While each state can decide for itself what sources are covered by the fair report privilege, it generally applies to publicly available government records, official government reports, and statements made by government officials. Interim and unfinished government records and reports generally are not covered.
Examples where the fair report privilege would probably apply include:
The privilege would probably not apply to:
Many sources may fall into gray areas. In general, the privilege is more likely to apply if the statement or fact comes from a public figure acting in his official capacity or a final, public report. It is less likely to apply where the figure is more private or is acting outside of his official scope of duties, or where the report is more preliminary or is inaccessible to the public.
Further, each state defines the scope of the privilege differently. For example, some states extend the privilege to more private settings such as a meeting of a corporation's share holders. Please consult your state's defamation section for specifics.
Ensuring That Your Use of Sources is "Fair and Accurate"
Whether the statement is true or not does not matter for purposes of the fair report privilege: even if the witness whose testimony you relied on is later convicted of perjury, the privilege still applies if you accurately reported and attributed the testimony he provided in the first place. It would apply even if you had knowledge that the witness was lying in his testimony. The purpose of the privilege is to protect statements or facts from public sources that are newsworthy in and of themselves, regardless of their veracity.
Generally, courts will follow rules of accuracy that echo the "gist" and "sting" rule developed to test for "substantial truth." See the section on Substantial Truth for more information.
But what is critical is that you accurately report (or abridge fairly) the information: reporting that the witness said the defendant deliberately burned down the house when the witness had only said that the defendant accidentally dropped a match would not be protected by the fair report privilege. Be particularly careful when you are "translating" complex legalese. Further, be careful not to use quotations selectively. For example, if a witness in her testimony said she saw the defendant rob the store, then corrects herself thirty minutes later in the same testimony to indicate that she had really not seen the robbery, quoting only the first part would likely fall outside the fair report privilege.
In general, courts will look at whether you acted in "good faith," looking far more favorably at an honest mistake that was made in condensing a long, complex statement or document than at selective quotation that may be perceived as maliciously intending to portray the subject in the least favorable light possible. Not every fact must be included, but many courts will find the privilege lost if the overall reporting is too one-sided.
Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.
Although not widely adopted, the neutral reportage privilege is designed to protect the interests of the press in reporting on matters of public interest, which can often only be done by reporting accusations made by one public figure about another. Without a neutral reportage privilege, if you publish what another person has said or written and that statement turns out to be defamatory, you may be liable for defamation even if you stated that you believed the allegation was untrue. In other words, with limited exceptions, you step into the shoes of those whom you quote or republish on your site.
Keep in mind that not all states recognize the neutral reportage privilege or apply it to non-traditional publishers, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:
Edwards v. National Audubon Soc., 556 F.2d 113 (2d Cir. 1977).
The privilege was first recognized in a 1977 case involving the New York Times, which reported accusations made by the National Audubon Society that a group of scientists were behaving as "paid liars" on the issue of whether DDT was harming bird populations. The story posed a dilemma. The reporter had a good sense that the Audubon Society had little or no evidence to back up its claims and that due to republisher liability he might well be liable for defamation if he published the story. But he also recognized that in his hands was a newsworthy story about an accusation made by a prominent organization. The court responded by recognizing a new form of First Amendment protection:
What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. . . . The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them.
Edwards, 556 F.2d at 120. The court explicitly stated that the reporter's knowledge of factual inaccuracies in the story was immaterial to whether or not the privilege applied.
Examples of the Neutral Reportage Privilege
Examples of instances where courts have applied the neutral reportage privilege include:
Differing State Approaches to the Neutral Reportage Privilege
Although the neutral reportage privilege has been adopted in some jurisdictions, few states have clear state-wide rulings on what the privilege entails. Even in those states that recognize the privilege, it can vary in important ways:
If you republish a news item from a "reputable news service," you may be covered by a privilege called the "wire service defense." This defense to a defamation claim is distinct from the immunity provisions in the section 230 of the Communications Decency Act (commonly referred to as CDA 230 immunity), which may also cover if you republish content from a third-party. See the section on Publishing the Statements and Content of Others for more information.
Generally speaking, in states that recognize the wire service defense, it will apply if:
In the Internet context, it is not clear how wide a net is cast by the term "reputable news agency." Traditional wire services such as the Associated Press and United Press International would likely be covered, but courts have not yet looked at the wire-service defense in light of RSS feeds and similar distribution tools.
Keep in mind that rewriting news items in a blog format will limit your ability to invoke the wire service defense. When you choose to modify and comment on the material, you will likely lose the ability to assert this defense.
Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.
"Statute of Limitations" is a term used by courts to describe the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred. This time limit is typically set by state statute and is intended to promote fairness and keep old cases from clogging the courts. Generally speaking, the limitations period for intrusion claims begins to run on the date when the intrusion occurred.
Each state sets it own time limits for bringing a lawsuit and a court will typically apply the appropriate statute of limitations of the state in which the suit is filed. A relatively short limitations period is an acknowledgment of the importance of free speech principles, since a short time period reduces the potential chilling effects of speech-challenging lawsuits.
Because each state has its own statute of limitations for defamation claims, which vary between one and three years, you should refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.
Determining When the Statute of Limitations Period Begins
Generally speaking, the limitations period begins to run when a defamatory statement is "published" (i.e., communicated to someone other than the plaintiff).
This rule is relatively easy to apply when a defamatory statement is spoken to a third person. But what about situations where publication is to a mass audience, such as on the Internet? In these situations, the statute of limitations could begin anew at the time of each publication. For example, the statute of limitations could begin every time someone reads a blog post or finds an archive copy of a newspaper in a library, even if the original material was published years ago.
Single Publication Rule
Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.
However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.
Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way: be careful to consider this if you are thinking of substantially editing or rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.
Choose a state from the list below for state-specific information on defamation law. For general information on defamation and false light, see the section on Publishing Information that Harms Another's Reputation.
Note: This page covers information specific to California. For general information concerning defamation, see the Defamation Law section of this guide.
Defamation, which consists of both libel and slander, is defined by case law and statute in California. See Cal. Civ. Code §§ 44, 45a, and 46.
The elements of a defamation claim are:
Publication, which may be written or oral, means communication to a third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the “public” at large; communication to a single individual other than the plaintiff is sufficient. Republishing a defamatory statement made by another is generally not protected.
See generally Ringler Ass'n, Inc. v. Maryland Cas. Co., 96 Cal.Rptr.2d 136, 148 (Cal. Ct. App. 2000); Gilbert v. Sykes, 53 Cal.Rptr.3d 752, 764 (Cal. Ct. App. 2007).
Defamation Per Se
A plaintiff need not show special damages (e.g., damages to the plaintiff's property, business, trade, profession or occupation, including expenditures that resulted from the defamation) if the statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature. See Cal. Civ. Code § 45a; Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal. 2008).
For example, an allegation that the plaintiff is guilty of a crime is defamatory on its face pursuant to Cal. Civil Code § 45a. In one case, a non-profit organization (NPO) that advocates for the rights of low-income migrant workers posted flyers claiming a national retailer of women's clothing engaged in illegal business practices by contracting with manufacturers that did not pay minimum wage or overtime. The retailer brought a defamation suit against the NPO. Although the statements would have qualified as defamation per se, the court concluded the retailer failed to establish the statements in the flyers were false, and therefore the statements could not be considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).
Public Officials
In California, public officials are those who have, or appear to the to have, substantial responsibility for or control over the conduct of government affairs. For example, the following persons have been considered public officials in California:
Public Figures
In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Someone who voluntarily seeks to influence resolution of public issues may also be considered a public figure in California. For example, the following persons have been considered public figures in California:
Limited-Purpose Public Figures
A limited-purpose public figure is a person who voluntarily injects herself or is drawn into a particular public controversy. It is not necessary to show that she actually achieves prominence in public debate; her attempts to thrust herself in front of the public is sufficient. Copp v. Paxton, 52 Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose public figures, the alleged defamation must be relevant to the plaintiff's voluntary participation in the public controversy (if the issue requires expertise or specialized knowledge, the plaintiff's credentials as an expert would be relevant).
In California, the following persons have been considered limited-purpose public figures:
California courts recognize a number of privileges and defenses in the context of defamation actions, including the fair report privilege, the opinion and fair comment privileges, and substantial truth.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fair Report Privilege
California courts have codified the fair report privilege in Cal. Civil Code §47(d) and (e). The privilege generally applies to publicly available government records, official government reports, and statements made by government officials.
Neutral Reportage Privilege
The California Supreme Court has not formally recognized the neutral reportage privilege. Nevertheless, several federal courts have applied the neutral report privilege in cases involved California law and there are relatively strong indications that state courts in California would apply the privilege if faced with the proper fact pattern.
The California Supreme Court indicated a possible willingness to consider the neutral report privilege in the context of public figure defamation. In that case, which involved an allegation that the plaintiff, a private citizen, participated in the Robert Kennedy assassination when he was 21 years old, the California Supreme Court held that the neutral report privilege did not apply to cases where the plaintiff was a private figure. Khawar v. Globe International, 19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question, however, whether the neutral report privilege would apply if the defamatory statement involved a public figure.
In addition, several lower California courts have expressed support for the privilege without directly ruling that the privilege applies. See Weingarten v. Block, 102 Cal. App. 3d 129, 148 (1980); Grillo v. Smith, 144 Cal. App. 3d 868, 872 (1983); Stockton Newspapers, Inc. v. Superior Court, 206 Cal. App. 3d 966, 981 (1988); Brown v. Kelly Broad. Co., 48 Cal. 3d 711, 732-33 n.18 (Cal. Ct. App. 1989).
Although their application of the privilege is not binding on California state courts, two federal courts in the state have applied the neutral reportage privilege in situations involving the following:
Wire Service Defense
The wire service defense generally is not recognized in California. However, one trial court in California did recognize the wire service defense in an unpublished decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121 at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court level and unpublished, other California courts are free to disregard the court's decision to apply the wire service defense.
California's statute of limitations for defamation is one (1) year. See California Code of Civil Procedure 340(c).
California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5. A California Court of Appeals recognized the single publication rule in the context of publications on the Internet. Traditional Cat Ass'n, Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.
Note: This page covers information specific to the District of Columbia. For general information concerning defamation, see the Defamation Law section of this guide.
According to District of Columbia law, defamation claims have four elements:
See Jankovic v. International Crisis Group, 429 F.Supp.2d 165, 173-4 (D.D.C. 2006). The elements of a defamation claim in the District of Columbia are similar to the elements listed in the general Defamation Law section, with the following exceptions:
Defamation Per SeIn the District of Columbia, any written or printed statement that falsely accuses someone of committing a crime constitutes defamation per se. See Raboya v. Shrybman & Associates, 777 F.Supp. 58 (D.D.C. 1991). If a statement is defamation per se, the court will assume harm to the plaintiff's reputation, without further need to prove that harm.
The District no longer allows presumed damages for defamation per se directed at public figures, following the U.S. Supreme Court's decision in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658 (D.C. Cir. 2007) (affirming unpublished lower court decision implying that presumed damages are no longer available for public figures). The court in El-Hadad noted that D.C. law provides for presumed damages for defamation per se directed at private figures.
Public FiguresFederal courts in D.C., applying D.C. law, have ruled that corporate plaintiffs are considered public figures as a matter of law in lawsuits against mass media defendants that involve "matters of legitimate public interest." See Oao Alfa Bank v. Center for Public Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). The opinions of federal district courts are not definitive on the meaning of D.C. law, but other cases might choose to follow this rule. Should they decide to do so, then any corporation -- no matter how large -- would have to prove actual malice in order to prevail in such cases. There is no reason to believe this rule would not apply to lawsuits involving citizen media defendants because the underlying rationale focuses on the characteristics of corporations, not those of the defendant in the lawsuit.
Actual Malice and NegligenceIn the District, a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was at least negligent with respect to the truth or falsity of the allegedly defamatory statements. Public officials, all-purpose public figures, and limited-purpose public figures must prove that the defendant acted with actual malice, i.e., knowing that the statements were false or recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.
District of Columbia courts recognize a number of privileges and defenses in the context of defamation actions, including the wire service defense, the fair report privilege, the opinion and fair comment privileges, and substantial truth.
It is not clear whether the D.C. courts recognize the neutral reportage privilege.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.
Fair Report Privilege
D.C. courts recognize the the fair report privilege. The privilege is applied broadly to statements made during proceedings before any court, agency, executive body, legislative body, and to reports of any official proceeding or action taken by a government officer or agency.
Wire Service Defense
D.C. recognizes the wire service defense, which precludes defamation liability for speakers who republish content from wire services. D.C. also recognizes the reverse of the standard wire service defense: wire services may rely on content from reputable newspapers without being held negligent. See Winn v. UPI, 938 F.Supp. 39 (D.D.C. 1996).
Neutral Reportage Privilege
District of Columbia courts have not ruled definitively on the availability of the neutral reportage privilege.
In White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990), the U.S. Court of Appeals for the D.C. Circuit noted that it had not yet recognized the neutral reportage privilege, although the court seemed to express a favorable view of it. At least one lower D.C. court has applied the privilege. See In re United Press Intern, 106 B.R. 323 (D.D.C. 1989) (news reports were immune from defamation