Defamation

Defamation can be either be published or communicated in writing (called “libel”), or verbally (called “slander”). While both commonly occur in society, “libel” cases are far more common, simply because verbal “slander” is often more difficult to prove.

The first step in evaluating whether a statement constitutes defamation is to examine the content of the statement itself.

An opinion (e.g., “In my opinion, this restaurant has food that does not taste very good.”) – which is not a fact – is typically not defamation.  Most opinion is speech protected by the First Amendment of the United States Constitution.  (Defamation is based in state law, which is trumped, or “pre-empted,” by the United States Constitution.)

A defamatory statement must be false. Even a statement that may be harmful to one’s reputation, if true, does not constitute defamation.

Higher standards apply to public figures (i.e., celebrities) bringing a defamation claim. Private figures must only prove negligence by the party who published or communicated the statement; however, public figures need to prove “actual malice,” or a reckless disregard for the truth or falsity of the statement (a higher standard than proving negligence).

Defamation per se are certain statements that are deemed so inherently injurious that damages to the subject-person’s reputation are presumed. New York has four categories of statements which constitute defamation per se, including statements charging a person of committing a “serious crime,” and statements which tend to injure a person in the person’s business, trade, or profession.

Defamation claims in New York have a relatively short statute of limitations. Claims must be filed within one year of the publication or communication of the defamatory statement.

If you believe that a false, defamatory statement of fact has been published or communicated about you, please contact an experienced defamation attorney who may be able to help.

New York follows the single publication rule. Pursuant to this rule, a party that causes the mass publication of defamatory content may only be sued once for its initial publication of that content. For example, if a newspaper or magazine publishes a defamatory article that is circulated to thousands of people, the newspaper or magazine may only be sued once. The Statute of Limitations (discussed above) begins to run at the time of first publication.

The act of republication resets the Statute of Limitations for defamation claims. This is an exception to the single publication rule.

When determining whether material has been republished, Courts examine whether the republication was intended to and actually reached new audiences. Other factors that Courts may examine include whether the second publication was made on an occasion distinct from the first publication and whether the defamatory content has been modified between publications.

Below are a few examples where a Court has found in favor of republication and did not apply the single publication rule:

The maker repeated a defamatory statement in a later edition of a book, magazine or newspaper.

The maker rebroadcast defamatory material on a television.

The maker caused articles to be published in morning and afternoon editions of the same newspaper.

If a statement is privileged or a defense applies, the maker of that statement may be immune from any lawsuit arising out of those privileged statements. Below are common privileges and defenses that are asserted in defamation lawsuits.

Statements protected by absolute privilege allow the maker to be free from all liability surrounding those statements. In other words, the maker is seen as having the right to make the statement, regardless of the impact. In order for a statement to qualify for this protection, the statement must first be made by an individual participating in a public function. Examples of public functions are judicial, legislative or executive proceedings. Second, the person at whom the statement is directed must have the opportunity to challenge the statements. For example:

In Toker v. Pollak, 44 N.Y.2d 211, 219 (1978), the Court of Appeals (New York’s highest appellate court) held that grand jury testimony was protected by absolute privilege. The Court ruled that a judicial proceeding is “a proceeding in a court or one before an officer having attributes similar to a court” and grand jury testimony clearly falls within this definition.

In Wiener v. Weintraub, 22 N.Y.2d 330, 332 (1968), the Court of Appeals similarly held that a complaint made to a bar association grievance committee was absolutely privileged. The Court ruled that the grievance committee is a subsection of the New York Court system. Therefore, this type of procedure is one which is before an officer having attributes similar to a court and falls within the definition of a judicial proceeding.

Qualified privilege offers less protection than absolute privilege. Qualified privilege does not grant the maker automatic immunity. For a statement to qualify for this privilege, the statement must be made while the maker is exercising a legal or moral duty to make the statement, and the recipient must have an interest in receiving the information. Statements may lose this protection if the opposing party is able to demonstrate that the statement was made with the intent to cause harm.

In Toker, the Court held that communications made between an individual and law enforcement receive qualified privilege. Specifically, the Court ruled that these statements are not entitled to complete protection, but the statements do receive some protection. To balance the need the court afforded these statements the lesser qualified privilege.

To obtain protection under the common interest privilege, there must first be a legitimate communication about a subject matter. Second, these communications must be between two individuals sharing a similar interest in that subject matter.

In Liberman v. Gelstein, 80 N.Y.2d 429, 437 (1992), the Court held statements made by the Board of Governors of a tenant’s association regarding a landlord were protected. The Court held this because the conversation was within a common interest of the defendant and his colleague, and there was nothing to suggest this communication was about anything other than advancing their common interest.

Under New York Civil Rights Law § 74, a defamation lawsuit cannot be sustained against any person making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” In Briarcliff Lodge Hotel, Inc. v. Citizen-Sentinel Publishers, Inc., 260 N.Y. 106 (1932), the Court held that for the report to be “fair and true” it must be substantially accurate. In other words, courts review cases for any substantial and contextual accuracy of news reporting.

In Rakofsky v. Washington Post, 39 Misc. 3d 1226(A) (Sup. Ct. New York County 2013), the Court held that a report regarding a judge’s ruling on a motion was entitled to this privilege. The Court held that although the wording was not identical, the wording was similar enough to convey a fair reporting of a judicial proceeding.

Truth is an absolute defense to defamation. In other words, the maker cannot be held liable for saying things that are actually true. The party asserting the defense bears the burden of showing the truthfulness of those statements.

Statements can also be defended as being substantially true. In Fleckenstein v. Friedman, 266 N.Y. 19, 23 (1934) the court articulated the “workable test”. This test looks to whether the statement, as published, would have a different impact on the reader or listener than the truth.

In Mitre Sports Int’l, Ltd. v. HBO, Inc., 22 F. Supp. 3d 240, 253 (SDNY 2010), HBO asserted that because there was a possibility of Mitre’s use of child labor in one country, then the statements about the same practices in another country are protected via substantial truth. The court rejected this defense as there would have been a different impact on reader if the statements published were indeed true.

Generally, damages for defamation claims are proportionate to the harm suffered by the plaintiff. The three types of damages for defamation claims are compensatory damages, nominal damages, and punitive damages.

Compensatory damages are awarded to compensate for actual harm resulted from the defendant’s defamation. Some types of actual harm include impaired reputation and standing in the plaintiff’s community, personal humiliation, mental anguish and suffering, loss of employment opportunities, and the cost of trying to mitigate the harm from defendant’s libel. There are two types of compensatory damages – (1) special damages and (2) general damages.

Special damages are based on economic harm where there are losses or injuries to the plaintiff’s property, business, occupation or profession. To claim special damages, the specific amount of economic harm must be identified.

General damages are for other damages that are not under special damages. The amount of general damages may be difficult to assess and the jury generally has the discretion to determine the award amount after weighing all the facts.

In defamation per se claims, a plaintiff may be able to recover nominal damages even if the plaintiff does not show any actual injury resulted from the defamation per se. Nominal damages are small monetary awards to vindicate a plaintiff’s good name.

Plaintiffs can seek punitive damages in defamation claims. Punitive damages are intended to punish the defendant and meant to deter the defendant from repeating the defamatory conduct. The amount in punitive damages depend on several factors, such as degree of defendant’s malice or wanton or willful conduct.

Keep in mind, the damages a plaintiff may seek depends on the type of defamation, whether the plaintiff is a public or private figure and whether the defamatory statement is related to a private or public concern. For example, in Zaidi v. United Bank Ltd., 747 N.Y.S.2d 268 (Sup. Ct. 2002), the Court held that a defamation claim, where the defamation involves a private person and a private matter, requires a fair preponderance of credible evidence of common law malice. In other words, a private person seeking punitive damages for defamation must show the defendant made such defamatory statement out of hatred, ill will or spite.

If you would like more information on defamation – either because you want to pursue a defamation claim or want to defend against an existing claim – please contact an experienced defamation attorney who may be able to help.