How to Avoid a Lawsuit for Defamation

Defamation claims in the U.S. courts are growing exponentially...

How to Avoid a Lawsuit for Defamation

How to Avoid a Lawsuit for Defamation

<strong>Defamation claims in the U.S. courts are growing exponentially...</strong>

Author: Dan Brecher|March 3, 2021

Given the broad and instant reach of television and the Internet, along with the heightened societal tensions both political, economic and pandemic related, defamation claims in the U.S. courts are growing exponentially. The buzz surrounding defamation claims against Rudy Giuliani, Fox News, and others related to the 2020 election have also generated misconceptions about the bases and viability of defamation claims.

So when could you face liability for defamation and how do you avoid liability?

Elements of a Defamation Claim

In England, defamation claims are far more common because rulings of the English legal system are far more supportive of defamation claims than the U.S. courts. In basic terms, defamation is defined under U.S. law as any false statement of fact that is harmful to someone’s reputation and published “with fault” (negligence or malice). As set forth in the Restatement (Second) of Torts § 558, “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”

There are several categories of defamation claims, but they all have similar basic requirements

  • A false and defamatory statement concerning another;
  • An unprivileged publication to a third party;
  • Fault amounting at least to negligence on the part of the publisher; and
  • Either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication. 

Libel and slander are forms of defamatory statements.  Libel is a written defamatory statement, while slander is a defamatory statement that is oral.

With regard to Dominion Voting Systems’ lawsuit, the broad public broadcasting of Giuliani’s accusations against Dominion, while yet to be proven defamatory in a court of law by Dominion, do appear, on their surface, to fit the definition of several of the defamation causes of action if false: injury to Dominion’s reputation, injurious falsehood, slander (oral), and libel (if written). Additional defamation causes that might apply here include product disparagement, negligent misrepresentation causing harm, and words negligently spoken.

As highlighted above, simply “publishing” an untrue accusation that fits within the legal defamation definitions, could result in two billion dollars in damages (plus costs). “Publishing” could mean as little as just uttering your words in the hearing of a third party, or in a television interview on a talk show or to a newspaper reporter.  Of course, obtaining a significant damages award normally requires convincing a judge and jury of the defendant’s liability under the law and the plaintiff’s damages and right to recovery. If the defendant’s acts are so repulsive as to so strongly offend as to merit punitive damages, or are shown to affect a business reputation, damages could be awarded on a finding of libel or slander per se, with or without proof of actual damages.

Cyber Defamation Claims

Given the proliferation of social media and online forums, defamation claims increasingly involve statements made online. While the elements are essentially the same, proving online defamation can be challenging, largely due to the nature of the Internet.

Online speech is often extremely informal, and Internet users often use acronyms, hyperbole, and relaxed grammar. While this may be used to suggest that alleged defamatory statements are merely opinions rather than actionable statements of fact, courts have declined to excuse otherwise defamatory statements simply because they were made via the Internet.

With regard to holding “publishers” accountable for defamatory statements, courts have held that social media and blog hosting platforms can’t be liable for the statements of their users. Pursuant to the Communications Decency Act (CDA), “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 

Under Section 230 of the CDA, “interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” Meanwhile, an “information content provider” is “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.”

Section 230 provides broad immunity to online platforms. However, in recent years, the statutory defense has become targeted for removal and is currently under review in Congress and the courts.

Truth Is the Best Defense

Truth is a complete defense to defamation claims. So, if you consistently speak the truth, you arguably should have little to worry about when it comes to defamation claims, except for a vindictive and baseless complaint.  Of course, in addition to the truth of the statement complained of. There are other defenses available against a defamation claim.  For example, because defamation claims must involve false statements of fact, statements of opinion are generally not actionable.  In New Jersey,  statements of opinion are only actionable if they imply defamatory facts on which the defendant bases his statement.  As the court explained in Karnell v. Campbell, 206 N.J. Super. 81, 89 (App. Div. 1985), “Expressions of opinion, no matter how insulting, are actionable only if they imply the existence of undisclosed defamatory facts on which the opinion was based. While the opinion cannot be false, those undisclosed defamatory facts may be, thus subjecting the publisher of the opinion to liability.” 

Privileged statements, such as those made to an attorney or doctor or made by a witness during a legal proceeding, are also not considered defamatory. The rationale is to promote people to be honest and forthcoming without fear of legal action. To defend against a claim of defamation, defendants may also argue that the statements at issue were “fair comment” on a matter of public interest. In Dairy Stores Inc. v. Sentinel Publishing Co., 104 N.J. 125 (1986), the New Jersey Supreme Court held that the need for information to flow freely and the desirability of commentary on matters of legitimate public concern required the extension of the fair comment privilege, beyond statements of opinion, to include statements of fact and that the defense could only be overcome by proof of actual malice.

Key Takeaway

The bottom line remains that it is best to be careful what you say and how you say it, both in the words you choose to use and the forum in which you choose to communicate.

If you have questions, please contact us

If you have any questions or if you would like to discuss these issues further,
please contact Dan Brecher or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.

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About Author Dan Brecher

Dan Brecher

Dan Brecher's experience ranges from general counsel of New York Stock Exchange and NASD/FINRA member brokerage firms to representation of companies in hundreds of public and private securities offerings and advising institutional and high net worth investors.

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