Defamation & Privacy — Torts

A homeowner has a billing dispute with a landscaping business, so he posts a review on a neighborhood message board that hundreds of neighbors read. The post calls the crew the most overrated, arrogant outfit he has ever dealt with, a complete rip-off, and says you would be a fool to hire them. The following week, several longtime customers cancel. The owner sues for defamation. Does he win?

No. Not a dollar. Every word in that post is insult and hyperbole, and none of it can be proven true or false. Defamation protects reputation against false statements of fact, and an opinion is not a fact. Stay with me, because that line moves once the plaintiff is famous, and it disappears entirely when the injury is privacy.

Here is the route. Four parts. The common law elements of defamation, and the libel slander divide. Then the constitutional overlay the First Amendment bolted on top. Then the defenses and privileges, including the statute that shields online platforms. And finally the four privacy torts, a different injury altogether.

Start at common law, before the Constitution shows up. Defamation is a false statement of fact that harms someone's reputation, and it has four elements. A defamatory statement. Of and concerning the plaintiff. Publication. And damages. Each one hides a trap.

Element one. A statement is defamatory if it tends to lower you in the estimation of a respectable part of the community. Or to deter people from dealing with you. Two things matter. It must be a statement of fact, capable of being proven true or false. And it must be false, because a true statement cannot be defamation.

A blog writes that Dr. Reyes botched three surgeries and lost her license. Provable, and devastating to her professional reputation. Defamatory. The same blog writes that Dr. Reyes has a cold bedside manner. Opinion, not a provable false fact, and not defamatory.

Element two. Of and concerning the plaintiff. The statement must reasonably be understood to point at this plaintiff, though it need not name them. Group size is the wrinkle.

A newspaper writes that one of the town's five council members took a bribe. The group is tiny, so each of the five may sue. All politicians are crooks, and no single politician can show it was about them. And only the living can be defamed. You cannot defame the dead, though a corporation can sue over its business reputation.

Element three. Publication is a term of art. It means communicating the statement to at least one person other than the plaintiff, who understands it. Nothing to do with printing. A whispered remark to one neighbor is publication. And under the republication rule, anyone who repeats a defamatory statement is treated as if they said it first.

Saying I heard she embezzled is its own publication, and attributing it to someone else is no shield. That is the trap the questions build on. Separately, the single publication rule treats one edition, one print run, or one web posting as a single publication for the statute of limitations.

Element four, damages, and here libel and slander part ways. Libel is defamation in a permanent recorded form. Writing, print, a broadcast, an online post. Libel presumes harm, so the plaintiff recovers general damages without proving a dollar of loss. Slander is spoken and transitory, and the plaintiff must prove special damages. Actual pecuniary loss, like a lost job.

Unless it falls into one of four categories so obviously damaging that harm is presumed anyway. Imputing a serious crime. A loathsome disease. Something adversely reflecting on your business, trade, or profession. Or serious sexual misconduct.

Try one. Dana tells a room of colleagues that Priya, a practicing accountant, cooks her clients' books. Priya cannot name one lost client. Does she recover? Yes. That attacks her competence and honesty in her profession, so harm is presumed. Had Dana said Priya is boring at parties, Priya would have to prove real financial loss.

Now the constitutional overlay. The Supreme Court held that the First Amendment limits defamation liability, because the fear of lawsuits would otherwise silence criticism of government and public affairs. Two questions set how heavy the plaintiff's burden gets. Who is the plaintiff? And is the statement about a matter of public or private concern?

A public official or a public figure, suing over a statement about their public role, must prove two extra things. That the statement was false, and that it was made with actual malice. Actual malice is the single most tested trap in this topic, because of what it does not mean. It does not mean ill will. It does not mean spite. It does not mean a bad motive.

It means the defendant either knew the statement was false, or acted with reckless disregard for whether it was true. Reckless disregard is subjective. The speaker actually entertained serious doubts and published anyway. And the plaintiff proves it by clear and convincing evidence, a higher bar than the usual preponderance.

Two flavors of public figure. All-purpose public figures have such pervasive fame that they are public figures for everything. A celebrity, a national activist. Limited-purpose public figures voluntarily thrust themselves into a public controversy to influence its outcome, and are public figures only for statements tied to that controversy.

Private figures get an easier path, because they never stepped into the spotlight. On a matter of public concern, a private plaintiff need only prove the defendant was negligent as to falsity. Negligence, not malice. But there is a damages catch, and the exam loves it.

With only negligence, the private plaintiff recovers only for actual injury. Broader than money, including proven reputational harm, humiliation, and mental anguish, but it must actually be shown. To get presumed damages or punitive damages, even a private figure has to prove actual malice.

The Constitution also moves the burden on truth. At common law the defendant proved truth as a defense. But for statements on a matter of public concern, the plaintiff must prove the statement false. So a plaintiff cannot win on a statement that simply cannot be shown false, however damaging it is.

One corner escapes all of this. When the plaintiff is private and the subject is purely private, think a confidential credit report about a small company's finances, the common law returns. Presumed and punitive damages without actual malice, and truth goes back to being the defendant's burden.

One more piece. There is no blanket privilege for anything labeled opinion. Bolting in my opinion onto a factual lie does not immunize it. What controls is whether the statement can be proven true or false. Pure opinion, rhetorical hyperbole, and obvious jokes are protected. But an opinion implying undisclosed facts is actionable, because the implication is provable.

Saying in my opinion, he must be embezzling, is actionable. Calling a restaurant critic a person of terrible taste is not. Asserting that the chef reuses last week's fish is a factual claim, and if false and damaging, it is actionable however it is dressed up.

Part three, the defenses. Truth is a complete defense, and where the defendant carries it, substantial truth is enough. The statement need only be accurate in its gist, its sting, not in every trivial detail. A paper reports a conviction for embezzling $50,000 when the true figure was $47,500. The sting is accurate, so the defense holds.

Consent is also complete. Then the privileges, in two strengths. An absolute privilege protects the speaker no matter how false or how malicious, and cannot be lost through bad motive or even knowing falsehood. Statements in judicial proceedings, by judges, lawyers, parties, witnesses, and jurors. Legislators in legislative business. High executive officials on official duty. And communications between spouses.

A qualified privilege is weaker. It protects speech serving a legitimate interest, but only if it is not abused. The fair report privilege, for a fair and accurate account of an official proceeding. An honest job reference. Statements defending your own reputation. Statements among people with a genuine common interest.

The privilege is lost the moment it is abused. By actual malice, knowledge of falsity or reckless disregard. By straying outside the scope. Or by spreading the statement to far more people than have any legitimate need to hear it. The defendant shows the privilege applies, and the plaintiff shows it was abused.

Then the modern wrinkle. The republication rule would make a website liable for every defamatory post its users write. Section 230 changes that. An interactive computer service is not treated as the publisher of content supplied by another person, so platforms generally cannot be sued for what their users post. Liability stays with whoever wrote the falsehood.

And because this topic is unstarred, expect the exam to hand you a statute and reward literal application. Picture one. A publisher who issues a full and fair retraction within ten days of a written demand caps a private plaintiff at actual economic loss. No presumed damages. No punitive damages. Apply it exactly as written.

It does not erase the claim. It says nothing about public figures. It removes two categories of damages, and nothing more. Importing rules the statute does not contain is how these go wrong.

Part four, privacy, a different injury altogether. Defamation punishes falsehoods that damage what people think of you. The privacy torts protect your right to be let alone and to control your own identity. Restatement (Second) of Torts § 652A lists four, and three of them can be committed with statements that are perfectly true.

One. Intrusion upon seclusion, the tort of prying. An intentional invasion into a place or matter you have kept private, in a way that would be highly offensive to a reasonable person. Wiretapping. Hacking an email account. Secretly filming inside a home.

Two features set it apart. No publication is required, because the prying itself is the wrong. A landlord who hides a camera in a tenant's bedroom is liable whether or not he ever watches the footage. And you must have had a reasonable expectation of privacy.

Which makes this one worth a pause. A street photographer takes candid shots of a woman walking a public sidewalk and eating lunch on a park bench. She never noticed, and never consented. Intrusion, or nothing? Nothing. No reasonable expectation of privacy on a public sidewalk, so there is no seclusion to invade.

Two. Appropriation. Unauthorized use of your name, likeness, or identity for the defendant's commercial advantage, usually a photo on an advertisement. The related right of publicity protects the commercial value of a well-known person's identity. The big limit is newsworthiness. Using a name or image in news reporting or commentary on a matter of public interest is not appropriation.

A soft-drink company putting a famous athlete's photo on a billboard to suggest she endorses the drink is appropriation. A newspaper printing the same photo beside a story about her championship win is not. And selling more papers does not change that. Nearly all media are commercial, and news use stays protected.

Three. Public disclosure of private facts. Giving publicity to a private fact that would be highly offensive and is not of legitimate public concern. Truth is not a defense here, because the facts are private precisely because they are true.

Two more things. The facts must be genuinely private, so anything already public or drawn from public records cannot support the claim. And publicity means wide dissemination to the public at large, not the single third person that satisfies defamation. Do not swap those two words.

So a website broadcasting a private citizen's confidential medical records to a mass audience, with no news value, is liable. A newspaper reporting a sheriff candidate's old fraud conviction, drawn from open court files, is not. That is truthful, lawfully obtained information on a matter of public significance, and the First Amendment protects it.

Four. False light. Giving publicity to a matter that places you before the public in a false light that would be highly offensive. It overlaps defamation, and differs in two ways. The false impression need not injure reputation. But it does require publicity, wide dissemination, not a single listener. And if the matter is of public interest, the plaintiff must also prove actual malice.

A magazine illustrating an article about drug addicts with a stock photo of an uninvolved bystander is the classic case. She may never prove reputational damage in the defamation sense. Being publicly and falsely portrayed as an addict is highly offensive, and that is enough.

Defenses across all four. Consent defeats every one, so long as the use stays within the scope given. Newsworthiness defeats appropriation, disclosure, and false light. The defamation privileges carry over. And privacy is personal, so a corporation cannot claim it, and it usually dies with the person.

A word on authorities. This episode named no cases, and that was deliberate. The constitutional rules come from a line of Supreme Court decisions, but NextGen questions will not ask for the names. They give you a fact pattern, or a statute, and ask what result the rule produces. The written sources are Restatement (Second) of Torts § 652A for privacy, and Section 230 for platforms.

If you keep only three things, keep these. One, defamation needs a provably false statement of fact, so opinion and hyperbole sit outside it. Two, actual malice means knowledge of falsity or reckless disregard, never spite. Three, publication needs one listener, but publicity needs the public.

Now the traps, straight from the examiners' favorites. One. Reading actual malice as ill will. A fact pattern that merely shows the defendant disliked the plaintiff has shown nothing. Two. Thinking truth defeats everything. Truth defeats defamation and false light, but not intrusion, and not public disclosure of private facts. There, a true revelation is exactly the injury.

Three. Swapping publication and publicity. Defamation needs one third person. Disclosure and false light need wide dissemination. Four. Treating opinion as a magic shield. A false factual assertion dressed up as opinion is still actionable if it can be proven false. Five. Forgetting that even a private plaintiff on a public-concern statement must show fault and must prove falsity.

Six. Reflexively presuming damages for spoken words. Libel presumes damages. Slander does not, unless it fits one of the four per se categories.

And because this topic is unstarred, expect a provided standard or statute. Name the tort first, run its elements, then check the defenses. Match the facts to the framework, and the single best answer usually falls out.

Time for the quick check, and this one comes straight from the BARGO question bank. A daily newspaper reports that the town's elected sheriff took secret cash kickbacks from a towing company. The story is false. The reporter personally disliked the sheriff and was pleased to run something damaging about him. But she relied in good faith on a source she considered reliable, and harbored no serious doubt the account was accurate. The source made the whole thing up.

To satisfy the actual malice requirement, what must the sheriff prove? Option one. That the reporter harbored personal ill will and spite toward him. Option two. That the reporter knew the story was false or seriously doubted its truth. Option three. That the reporter failed to use the care a reasonable journalist would use. Pause here if you want a moment.

The answer is option two. A public official suing over his official conduct must prove actual malice, and that is a term of art. Knowledge of falsity, or reckless disregard for the truth, meaning the speaker subjectively entertained serious doubts and published anyway.

Option one is the topic's most tested trap. Actual malice is not ill will, spite, or bad motive, so the reporter's personal dislike is legally irrelevant. Option three describes ordinary negligence, the reasonable journalist standard, which is not enough for a public official. Honest carelessness is not reckless disregard.

If you resisted the word malice, you are ahead of most candidates. There are thirty plus more questions on this topic alone.

Five things to take away. One. Defamation needs a false statement of fact, of and concerning the plaintiff, published to at least one person, causing damage. Two. Libel presumes harm. Slander needs proof of pecuniary loss, unless it fits one of the four per se categories.

Three. Classify the plaintiff and the subject. A public official or public figure proves actual malice. A private figure on a public matter proves negligence. A private figure on a private matter is back in the common law.

Four. Actual malice is knowledge of falsity or reckless disregard, never spite. Five. Publication is one listener, publicity is the public, and truth is no defense to intrusion or to disclosure of private facts.

Which is why our angry reviewer never pays. He wrote an insult, not a fact. Next time, Damages.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.