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No Harm, No Foul

Defamatory StatementsThe point of defamation law is to compensate a victim for unwarranted damages to his or her reputation. Therefore, if a defamatory statement does not cause any harm to the plaintiff, no viable defamation claim exists.

In some cases, a plaintiff may believe he or she has been injured by a false claim, and the plaintiff may even be correct. However, the damage must be to his or her reputation. Defamation law does not compensate a victim for emotional distress or hurt feelings; other branches of tort law are available for such claims. In a defamation suit, it is up to the jury to determine whether or not a reasonable person would consider the plaintiff’s reputation to be damaged.

Sometimes a joke taken too far can result in defamation, as was the case in Powers v. Durgin-Snow Publishing. In his article entitled “Milling Around,” journalist Sunny Olesen profiled plaintiff George Powers and his unique pastime; Mr. Powers had dedicated much of his time to building his own coffin. Olesen referred to Powers in his article as “a classic example of typical Yankee thrift” and a “slightly ghoulish gent.” Though the facts of the article were all presented accurately, they were not presented objectively. It was Olesen’s contempt-tinged ridicule with which the court took issue. Because the article had a “natural tendency to expose the plaintiff to ridicule that is more than trivial,” the court found that the harm to Powers outweighed the defendant’s right to free speech.

In Neal v. EA Sports, plaintiff Steve Neal, an African American player on the Western Michigan University football team, sued EA Sports for incorrectly using his photo in the Madden NFL Football 2004 and Madden NFL Football 2005 video games. While the action scenes of the games accurately depicted three-time Superbowl winner and New England Patriot Steve Neal (a White football player), the biographical section of the video game showed plaintiff Neal’s photo juxtaposed with the Patriot Neal’s stats (which were far better than his own). A prior licensing agreement gave EA the right to use Neal’s likeness and biographical information, but claimed that the mix-up defamed him. The court disagreed and sanctioned plaintiff Neal’s attorney for unreasonably pursuing the suit. Though EA undeniably made an error, portraying an individual as a different race is not harmful, nor is boosting his athletic record.

There is one major exception to this element: the “libel-proof plaintiff.” A libel-proof plaintiff is an individual who has already done so much harm to his or her own reputation that the court determines he or she cannot be further injured. Ouch. Examples of such plaintiffs may include repeat criminals and crazed former celebrities.

Once harm has been established, the plaintiff still has to prove that the defendant caused it. Next time, we'll talk about how to establish fault in a defamation claim.


Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.   

  • Defamation
  • Apr 26, 2017

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