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The First Amendment protects all sorts of speech, even when others don’t like it. However, not all speech is protected. Defamation is a form of speech that is unprotected because it does more harm than good. If you are the victim of defamation, you may be able to recover damages for the harm it has caused you. Call Spencer Young Law if you have questions for a defamation lawyer about your rights.

What is Defamation?

California courts recognize defamation as the intentional publication of false statements of fact which the reader or listener reasonably understands to be a true statement about a specific person, causing that person harm.

What is “Intentional Publication”?

Intentional publication” means any manner of intentionally communicating a statement to a third party. A third party, in this case, means any person other than the person whom the information is about. Such a statement may be communicated orally in person or by phone, printed in a newspaper or on a billboard, posted on the Internet or social media, sent by letter or e-mail, or broadcast on the radio or television. Because communication methods are constantly evolving, the law defines “publication” very broadly.

Example 1: Diego says to Mark, “I saw you stealing your neighbor’s car.” Mark did not steal anything. While Diego communicated this statement to Mark, he did not “publish” it because he did not say it to a third party. Although Diego’s comment is false and hurtful, it is not defamatory because it was not published.

Example 2: Franzia writes an e-mail to Chloe stating that Ellen is an alcoholic. Franzia inadvertently enters the wrong e-mail address, so it never reaches Chloe. Although Franzia intended to publish her statement, she did not succeed, because it was not actually communicated to Chloe. Whether or not Ellen is an alcoholic, Franzia did not defame Ellen because her statement was not published.

Example 3: Cleopatra is Aaron’s coworker. She calls Aaron into her office and closes the door. She says, quietly, “I know that you lied on your resume.” Aaron did not lie on his resume, and Cleopatra knows this. Unbeknownst to Cleopatra, the landlord has secretly placed a microphone in her office. The landlord hears everything, then anonymously sends a tape to Aaron’s supervisor, who listens to the tape and fires Aaron. Although Cleopatra “published” her statement to the landlord, she did not intend to publish it, so it would not constitute defamation.

Example 4: Lenore hosts a live podcast. She interviews Kasper. In the middle of the interview, Kasper says to Lenore, “I saw you hit your child.” Lenore has done no such thing. Although there is no one else in the studio when Kasper makes this statement, it is instantly broadcast to thousands of listeners. Kasper has “published” this statement by communicating it to multiple third parties. He may be liable for defamation.

What are “Libel” and “Slander”?

Libel and slander are forms of defamation. Libel occurs when a statement is published visually (such as in pictures or written words). Slander occurs when a statement is published audibly (such as by spoken word). Otherwise, there is no difference between libel and slander; both are forms of defamation. If you a questions about either of these legal theories, call a defamation attorney at Spencer Young Law now to see if you have a personal injury or employment law case.

What Makes a Statement “False”?

A statement is “false” if it is presented as a statement of fact but is not actually true. A statement of fact is a statement that is capable of being proven or disproven. A statement of opinion cannot be proven or disproven, so it cannot be false. However, in some cases, a statement of opinion may imply that the speaker knows facts that could be proven true or false if those facts were stated; such statements may therefore be considered “false”.

Example 1: Janelle states that Michael is “stupid.” Although this is an insulting statement, there is no way to conclusively prove or disprove that someone is “stupid.” Janelle has merely stated her opinion, which does not constitute defamation.

Example 2: Janelle states that Michael “is so stupid that he couldn’t graduate high school.” There are ways to prove that Michael did or did not graduate high school. If he did, then Janelle made a false statement of fact, and may be liable for defamation.

Example 3: Mario is the Mayor of a town in the Bay Area. He fires the City Manager, Luigi. In a press conference, Mario says, “Luigi is a crook, so I had to let him go.” The word “crook” can mean any number of things and is sometimes used simply to express a negative opinion. In this case, because Luigi was fired, the statement implies that Luigi actually did something illegal or dishonest. Mario may be liable for defamation because his statement implies that certain facts are true.

Does It Matter How a False Statement is Understood by the Listener or Reader?

A false statement of fact is not defamatory unless the listener or reader reasonably understands it to be a true statement about a specific person. If the listener believes the speaker is joking, or is unsure whom the statement is about, the speaker may not be liable for defamation.

Example 1: Corinne is a stand-up comedienne. She tells the audience a story about her friend, Julio, who is also a comedian. She says Julio “got so mad at this heckler that he pulled out a rocket launcher and blew up the whole audience.” The audience laughs. The listeners in the audience understood Corinne’s statement as a joke, not a literal description of a violent act. Her joke was not defamatory.

Example 2: Van calls into a local talk radio show. He says that “a local grocery store is selling expired food.” There are many local grocery stores, and none of them sell expired food. The radio host asks which store Van was referring to, and Van hangs up. Listeners could not reasonably understand whom Van was referring to, so his statement was not defamatory.

Example 3: A tabloid magazine features a “blind item” column which repeats gossip about unnamed celebrities. One item says, “This singer, who just won a Grammy and performed at the Super Bowl half time show, was spotted buying illegal drugs near her home in Santa Monica.” There is enough information in this statement so that readers may understand it to refer to a particular individual. The tabloid may be liable for defamation.

What Harm Must a Statement Cause to be Defamatory?

A false statement of fact must cause actual harm or it must have a natural tendency to harm someone. A statement with a natural tendency to harm someone is presumed to cause harm, even if no actual harm has been proven. Statements with such a natural tendency are called “defamation per se.” Such statements include:

  • False accusations of criminal conduct.
  • False statements about having an “infectious, contagious, or loathsome disease.”
  • False statements about impotence or “want of chastity.”
  • False statements that a person is generally disqualified for their profession or trade, or which decrease the profits of a business.

Example 1: Brett tells Cindy that Lisa “is sleeping her way through the office.” This is false. Because Brett’s statement suggests that Lisa lacks “chastity,” it may constitute defamation per se.

Example 2: The parents of a missing child believe that their neighbor has something to do with the child’s disappearance. They purchase a billboard advertisement identifying the neighbor by name as a “monster and pervert who must pay for his crimes.” The neighbor had nothing to do with the child’s disappearance. The parents’ statement accuses the neighbor of criminal conduct and may constitute defamation per se.

Example 3: Liam writes a Yelp review for a restaurant. He writes that the restaurant “failed the last health inspection because of a cockroach infestation.” This is not true. His review will have the natural tendency to decrease the profits of the restaurant and may constitute defamation per se.

Example 4: Rosa and Darius are coworkers. Their supervisor is Priya. Rosa reports to Priya that Darius said Priya’s car is “not fuel efficient” and that Priya “would be wise to buy a hybrid.” Priya fires Darius because she loves her car and feels insulted by that comment. Rosa’s report was false. Rosa’s statement is not defamation per se because in most contexts, recounting someone’s opinion about the best vehicle has no natural tendency to harm that person. In this context, however, there was actual harm, because Darius lost his job as a direct result of Rosa’s false statement. Rosa may be liable for defamation.

Example 5: Scott spreads a rumor that his rival Tony “got a brand new motorcycle.” This is false, and Scott knows it is false. Tony doesn’t even like motorcycles. However, nothing about this false statement would naturally harm anyone, nor does it cause any actual harm to Tony. The statement is not defamatory.

There are other factors to consider in determining whether a statement is defamatory. If you are a private citizen, you enjoy more protection to your reputation than a politician or celebrity. There are certain instances, such as in a courtroom, where otherwise defamatory statements are not actionable. True statements, no matter how embarrassing or harmful, are never considered defamatory.

The line between free speech and unlawful defamation can be blurry. If you think you have been harmed by defamatory statements, call Spencer Young Law today for a free consultation with a defamation attorney.

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