Today, because defamation is a civil tort, the burden lies with the plaintiff to prove his case by a preponderance of the evidence, i.e. he must be able to convince the jury that it is more likely than not that the speech was in fact defamatory. Libelous speech refers to defamatory speech that appears in print, while slanderous speech refers to defamatory speech that is spoken verbally.
Depending on the circumstances of the case, distinguishing whether speech is defamatory may be quite difficult. There are traditionally two types of defamation claims: defamation per se and standard defamation.
A statement that is defamatory per se is one that is obviously defamatory and does not require contextual interpretation. Traditionally, four types of false statements were considered to be per se defamatory: 1) allegations of criminal conduct; 2) assertions injurious to a person in their trade, business, or profession; 3) imputations of a loathsome disease; and 4) accusations of unchastity in a woman. Defamation per se increasingly uncommon in modern times and is rarely taken to trial in California.
By contrast, a standard defamation claim requires further information to determine whether the statement at issue is defamatory. If a magazine were to falsely claim that a celebrity has a new boyfriend, it would more likely be considered defamation if she was already married to another man. If the woman was single and the statement would not cause any harm beyond potential embarrassment, then the statement would probably not be considered defamatory. As the statement itself is not defamatory without providing context, standard defamation claims typically require proof of actual damages.
The difficulty of proving defamation is also dependent upon the individual who believes she has been defamed; public figures and private individuals have varying degrees of privacy rights. Where private figures retain their right to privacy in most cases and must only prove that a defamatory statement was made negligently, public figures involved in matters of public interest must prove that the writer or speaker made his statement with actual malice. The meaning of these terms and their established precedents will be discussed in coming posts.
If a plaintiff is able to prove that a defamatory statement fulfills each of the five requirements outlined in the coming posts (falsity, published, of and concerning, harm, and fault), the responsibility falls on the defendant to establish a defense. This series covers three common defenses to defamation—opinion, satire/parody, and privilege—each of which will be covered further in later posts.
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.