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Fault Required for Defamation

One of the more difficult issues in a defamation case focuses on whether the defendant is at fault for publishing defamatory comments. Common law rules created strict liability on the part of the defendant, meaning that a defendant could be liable for defamation merely for publishing a false statement, even if the defendant was not aware that the statement was false. Cases involving an interpretation of the First Amendment later modified the common law rules, especially in cases involving public officials, public figures, or matters of public concern.

Common Law Rules

At common law, once a plaintiff proved that a statement was defamatory, the court presumed that the statement was false. The rules did not require that the defendant know that the statement was false or defamatory in nature. The only requirement was that the defendant must have intentionally or negligently published the information.

Public Officials and Public Figures

In New York Times v. Sullivan, the Supreme Court recognized that the strict liability rules in defamation cases would lead to undesirable results when members of the press report on the activities of public officials. Under the strict liability rules of common law, a public official would not have to prove that a reporter was aware that a particular statement about the official was false in order to recover from the reporter. This could have the effect of deterring members of the press from commenting on the activities of a public official.

Under the rules set forth in Sullivan, a public official cannot recover from a person who publishes a communication about a public official's conduct or fitness unless the defendant knew that the statement was false or acted in reckless disregard of the statement's truth or falsity. This standard is referred to as "actual malice," although malice in this sense does not mean ill-will. Instead, the actual malice standard refers to the defendant's knowledge of the truth or falsity of the statement. Public officials generally include employees of the government who have responsibility over affairs of the government. In order for the First Amendment rule to apply to the public official, the communication must concern a matter related directly to the office.

Later cases expanded the rule to apply to public figures. A public figure is someone who has gained a significant degree of fame or notoriety in general or in the context of a particular issue or controversy. Even though these figures have no official role in government affairs, they often hold considerable influence over decisions made by the government or by the public. Examples of public figures are numerous and could include, for instance, celebrities, prominent athletes, or advocates who involve themselves in a public debate.

Private Persons

Where speech is directed at a person who is neither a public official nor a public figure, the case of Gertz v. Robert Welsh, Inc. (1974) and subsequent decisions have set forth different standards. The Court in Gertz determined that the actual malice standard established in New York Times v. Sullivan should not apply where speech concerns a private person. However, the Court also determined that the common law strict liability rules impermissibly burden publishers and broadcasters.

Under the Restatement (Second) of Torts, a defendant who publishes a false and defamatory communication about a private individual is liable to the individual only if the defendant acts with actual malice (applying the standard under New York Times v. Sullivan) or acts negligently in failing to ascertain whether a statement was false or defamatory.

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