On April 18, Fox News chose to avoid continuing a trial that would have likely ended disastrously for them, settling the headline-grabbing defamation lawsuit brought by Dominion Voting Systems for $787.5 million, reportedly the largest defamation settlement in US history. The case raises interesting questions about what defamation is, and when is there a viable cause of legal action against it.
US federal law defines defamation as “libel, slander, or similar claim alleging that forms of speech are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.”
In New York State, the courts have defined defamation a little differently; “a statement which tends to expose a person to hatred, contempt, or aversion or to induce an evil or unsavory opinion in the minds of a substantial number of people in the community.” While there’s considerable overlap, there’s also room for different interpretation.
In simplest terms, defamation occurs when party A makes a false statement about party B to party C, causing party B harm.
Defamation is generally either libel or slander: libel is defamation through writing, such as newspapers, blogs, social media posts and comments, chat and text messages, emails, signs and banners, etc. Slander is spoken defamation, such as TV interviews, podcasts, speeches, conversations, etc.
What separates defamation from a complaint, criticism, or even profanity are 5 things:
- It has to be false. If it’s demonstrably true, even if it’s negative, it isn’t defamatory.
- It has to be offensive. It can’t be neutral or positive, even if somehow it causes harm.
- It has to be public. This includes even a conversation between two people, and even in confidence. What it can’t be is a privileged communication, like a witness testimony or a personal diary entry. “Qualified Privilege” may also protect false, harmful statements made in the context of a review or warning to protect others, if no malice is shown.
- It has to be unauthorized. A statement isn’t defamatory if the plaintiff originally gave permission to make it, even if they changed their mind.
- It has to be harmful. Even if it’s false and made in bad faith, if it didn’t result in any harm it isn’t legally actionable, unless it’s “per se.”
“Per se” is a type of defamatory statement that is clearly damaging to someone’s reputation, even without demonstrated concrete injury (although any damages awarded may be limited as a result). There are 4 categories of per se defamation:
- Statements that tend to injure another in their trade, business, or profession.
- Statements imputing a serious crime.
- Statements imputing a loathsome disease (usually a sexually transmitted one).
- Statements imputing sexual misconduct or unchastity on a woman.
For a businessowner or professional, “Statements that tend to injure another in their trade, business, or profession” are usually the most viable defamation claims. But does that include things like a bad review online? Like the answer to most legal questions, it depends.
First, truth is a complete defense. Even if a review is scathing and mean-spirited, if it’s not factually false, it’s not defamation.
Second, “opinion” is protected. If an online review is carefully couched as an opinion (“I feel that this banker is dishonest”), there probably isn’t a viable defamation claim.
Third, if the person allegedly defamed is a public figure (politician, celebrity, etc.), they would have to show that the statement was made with actual malice.
Generally, a defamation action over a false online review will be against the person who left it, not the platform—Google, Yelp, etc. However, it is sometimes possible to force a website to remove a defamatory review through legal action. When reviews are anonymous, it’s also sometimes possible to obtain identifying information on the reviewer from the website through legal action.
Whether or not it’s worth pursuing a defamation lawsuit against someone is a subjective question, and depends on many factors, only some of which are legal. But the above should help you gauge whether something is actually defamatory, as well as help you avoid becoming liable for defamation yourself.
For any questions or assistance, contact us.