LAW OF TORTS

Defamation
INTRODUCTION
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 § 48(a))
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)