Torts

Defamation

Defamation is an invasion of the interest in reputation of a person or a group of persons resulting from libel or slander. (Cal.Civ.Code § 44)

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or disgrace, or which causes such party to be shunned or avoided, or which has a tendency to injure such party in such party's occupation. (Cal.Civ.Code § 45)

Slander is a false and unprivileged publication made orally either in person or by radio or television or by any other means which charges any person with crime, or with having been indicted, convicted, or punished for crime, imputes to a party the present existence of an infectious, contagious, or loathsome disease, tends directly to injure a party in respect to such person's office, profession, trade or business, either by imputing to such party general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the office, profession, trade, or business that has a natural tendency to lessen its profits, imputes to such person impotence or a want of chastity and by natural consequence, causes actual damage. (Cal.Civ.Code § 46)

DEFAMATION--LIBEL PER SE

A written statement is defamatory on its face if the natural and probable effect on the average reader is to defame the plaintiff without the necessity of considering the surrounding circumstances. (Cal.Civ.Code § 45a)

An oral statement is defamatory on its face if it charged plaintiff with a crime imputes in plaintiff the present existence of an infectious, contagious, or loathsome disease tends directly to injure plaintiff in respect to his her office, profession, trade or business, either by imputing to him her general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his or her office, profession, trade or business that has a natural tendency to lessen its profits imputes to him or her impotence or want of chastity.

If a statement is not defamatory on its face, but nonetheless under all circumstances is defamatory, plaintiff must establish that he or she has sustained special damages in order to also recover general damages.

OPINION--WHEN DEFAMATION

A published opinion is not defamatory unless it conveys to the recipient a provably false assertion of a fact or facts. Whether such an interpretation was conveyed is a question of fact. If such an interpretation was not conveyed, the expression or statement, though published, does not constitute defamation.

LIBEL/SLANDER-EFFECT ON AVERAGE READER OR LISTENER

The defamatory nature of a false and unprivileged publication must be determined by the natural and probable effect of the publication on the mind of the average reader or listener. Consequently, if the average reader or listener would regard it as a defamatory publication it may be libelous or slanderous on its face even though it is also susceptible of innocent meaning.

PUBLICATION

A "publication" of defamatory matter is its communication to a person other than the plaintiff, who understands its defamatory meaning and its application to the plaintiff. To be a publication, the communication also must be made intentionally or negligently.

A publication is intentional if made for the purpose of communicating the defamatory matter to a person other than plaintiff, or with knowledge that the defamatory matter is substantially certain to be so communicated. A publication is negligent if a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a person other than plaintiff.

Innuendo

It is also essential to publication that the recipient of the defamatory communication understood the statement was intended to refer to the plaintiff. If the defendant intended to refer to the plaintiff, and the recipient so understood the statement, it is immaterial what words the defendant used to identify the plaintiff. If the recipient mistakenly, but reasonably, believed that the defamatory statement was intended to refer to the plaintiff, it is immaterial that the defendant did not intend to do so.

Multiple Publications

Each of several publications by the defendant to a third person is a separate publication for which separate damages can be awarded, except that a single communication heard at the same time by two or more third persons is a single publication. Any one issue of a book newspaper, or radio or television broadcast, or exhibition of a motion picture or similar aggregate communication is a single publication.

Libel/Slander-Publication To Plaintiff

A libelous or slanderous statement is not published within the meaning of the law if the author of the statement makes the statement only to the plaintiff.

PRIVATE-FIGURE PLAINTIFF/PUBLIC-FIGURE PLAINTIFF-- PRIVATE MATTERS--ESSENTIAL ELEMENT

The essential elements of a claim for defamation by libel slander are:

1. The defendant by writing, printing or orally made a defamatory statement about the plaintiff;

2. The defendant published the defamatory statement;

3. The defendant:

a. knew the statement was false and defamed plaintiff; or

b. published the statement in reckless disregard of whether the matter was false and defamed plaintiff; or

c. acted negligently in failing to learn whether the matter published was false and defamed plaintiff;

4. Either the publication caused plaintiff to suffer special damages, or the statement was defamatory on its face. Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statement at the time of the publication.

A defendant acts negligently if he or she does not act reasonably in checking on the truth or falsity or defamatory character of the communication before publishing it.

In determining whether the defendant's conduct was reasonable the trier of fact is to consider:

1. The time element;

2. The nature of the interest that the defendant was seeking to promote by publishing the communication; and

3. The extent of the injury to the plaintiff's reputation or sensibility that would be produced if the communication proves to be false.

PUBLIC OFFICIALS AND PUBLIC FIGURES

In order for a public official to recover damages for a defamatory falsehood relating to his official conduct, he must prove that the statement was made with actual malice; that is, with knowledge that it was false or with reckless disregard of whether or not it was false. (New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 A.L.R.2d 1412].)

This rule has been extended to public figures, which are defined in Cepeda v. Cowles Magazines and Broadcasting, Inc., (9th Cir. 1968) 392 F.2d 417, 419 (cert. den. 393 U.S. 840 [21 L.Ed.2d 110, 89 S.Ct. 117]): "'Public figures' are those persons who, though not public officials, are 'involved in issues in which the public has a justified and important interest.' Such figures are, of course, numerous and include artists, athletes, business people, dilettantes, anyone who is famous or infamous because of who he is or what he has done." (Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938)

In Garrison v. Louisiana (1964) 379 U.S. 64, 74 [13 L.Ed.2d 125, 132-133, 85 S.Ct. 209], the Supreme Court further defined the New York Times meaning of actual malice by stating: "And since '... erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the "breathing space" that they "need ... to survive" ...,'376 U.S., at 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions. . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth." (Garrison v. Louisiana, supra, p. 79 [13 L.Ed.2d p. 135].) "

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice." (St. Amant v. Thompson (1968) 390 U.S. 727, 731 [20 L.Ed.2d 262, 88 S.Ct. 1323] [20 L.Ed.2d p. 267].)

This requirement of actual malice was extended to libel actions brought by public figures and by persons involved in matters of public interest or concern. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 155 [18 L.Ed.2d 1094, 1111, 87 S.Ct. 1975] (rehg. den. 389 U.S. 889 [19 L.Ed.2d 197, 88 S.Ct. 11]); Rosenbloom v. Metromedia (1971) 403 U.S. 29, 43-44 [29 L.Ed.2d 296, 311-312, 91 S.Ct. 1811]

Public Official/Figure--Public Matters-- Essential Elements

The essential elements of a claim made by a public official or public figure for defamation by libel or slander are:

1. The defendant by writing, printing, orally either in person made a defamatory statement about the plaintiff;

2. The defendant published the defamatory statement;

3. The defendant, at the time of the publication,

a. knew that the statement was false and defamed plaintiff, or

b. published the statement in reckless disregard of whether the matter was false and defamed the plaintiff;

4. Either the publication caused plaintiff to suffer special damages, or the statement was defamatory on its face.

Reckless disregard for whether the matter was false and defamed plaintiff means that the defendant must have had serious doubts about the truthfulness of the statement at the time of publication.

DEFENSES

LIBEL/SLANDER--TRUTH IS AN ABSOLUTE DEFENSE

An essential element of defamation by libel slander is that the statement published was false. Consequently, if the statement was, in fact true, there can be no defamation, regardless of defendant's motivation. Truth is an absolute defense to a claim of libel.

CONDITIONAL PRIVILEGE

A conditional privilege is a defense to an action for defamation, unless the defendant abused the privilege when publishing the statement.

A privilege is abused when a defendant publishes a defamatory statement about plaintiff, without a good faith belief in the truth of the statement; or without reasonable grounds for believing the statement true; or motivated by hatred or ill will towards plaintiff. Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish that the privilege was abused by defendant.

The Litigation Privilege

In California there is a general privilege that protects statements and conduct made during the course of judicial proceedings. (Cal.Civil.Code §47(b)) "Fair and true" communications to the press about a "judicial proceeding" are absolutely protected against defamation and other tort claims. (Calif.Civil.Code §47(d).) However, a lawyer's public statements about an anticipated but not yet filed lawsuit are not privileged. (Rothman v. Jackson (1996) 49 CalApp.4th 1134.)

DEFAMATION - INVASION OF PRIVACY - BY NEWSPAPER OR RADIO/TELEVISION BROADCASTER (Civil Code § 48a)

In an action for damages for libel by a newspaper, slander by a radio television broadcaster, invasion of privacy by false light against a newspaper, radio or television broadcaster, the plaintiff may recover no more than special damages unless the plaintiff proves that a written notice specifying the statements claimed to be defamatory an invasion of privacy and demanding the same be corrected, was served on such newspaper, at the place of publication or a broadcaster, at the place of broadcast within 20 days after the plaintiff acquired knowledge of such publication broadcast and that such correction was not published broadcast in substantially as conspicuous a manner in such newspaper on such broadcasting station as was were the statements claimed to be defamatory an invasion of privacy by false light, in a regular issue thereof published or broadcast within three weeks after such demand for correction was served on the newspaper or broadcaster.

The written demand for correction must be:

(1) served upon the newspaper publisher,

(2) served upon a person designated by the newspaper publisher to receive such notices, or

(3) served upon someone employed at the newspaper other than the publisher or the publisher's designee and the publisher acquires actual knowledge of the request for correction within three weeks after such demand for correction was served on the newspaper.

If after the service of said written demand for correction no such correction was published broadcast, or such correction was published or broadcast but not in substantially as conspicuous manner as were the statements claimed to be defamatory, plaintiff is not limited to the recovery of special damages.

Civil Code section 48a does not apply to magazines. (Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 949)

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