The life of a freelance writer is one of intrigue and mystery, at least inside our own minds. In the outside world, any writer who writes for the general public—or any audience of more than just themselves—has certain responsibilities with regard to what they write. I have previously discussed limitations on people’s First Amendment right to free speech. Two of these limitations affect freelance writers on a daily basis: commercial speech and defamation. I will talk about legal restrictions on commercial speech at a later date. Today, let us talk about defamation.
A Note on Nomenclature
“Defamation,” in a legal sense, refers to false statements about another person that causes injury to that person. The person could be an individual, business, or other organization. The injury must typically be measurable in financial terms for the defamation to be actionable in court.
“Slander” specifically refers to defamation that is spoken. “Libel,” on the other hand, is written. These two terms are sometimes used interchangeably, but they should not be. Both are types of defamation.
“Defamation per se” refers to specific types of statements that are considered intrinsically defamatory. This is also divided into “slander per se” and “libel per se.”
Defamation Claims for Good or Ill
The purpose of a defamation claim, ideally, is to compensate a person for financial losses, including damage to their reputation, caused by someone else’s false statements about them, by allowing them to assert a civil cause of action against the person who made the false statement. In this sense, a defamation claim is very similar to personal injury claims for intentional acts, such as assault and battery.
Defamation claims may also serve a different purpose, however: to intimidate or even silence critics. Informally known as a “strategic lawsuit against public participation” (SLAPP), this type of lawsuit often involves one or more corporations or other organizations alleging defamation against one or more individuals. The claim may be shaky or even meritless, but the cost of defending a defamation claim to the point of demonstrating this can be substantial. The claimant(s) often offer the targeted individual(s) the option of publicly retracting their statements in exchange for dropping the claim or lawsuit, thus effectively using the legal system to silence them.
Whether or not a particular lawsuit is a SLAPP is often a matter of opinion, since claimants generally do not admit that their primary intent is to censor their critics. Numerous U.S. states, including Texas, have enacted “anti-SLAPP statutes” to allow defendants to challenge defamation claims at the very beginning of a case.
In any defamation case, whether meritorious or SLAPP, the plaintiff has the burden of proving the elements of the claim. My intent for the remainder of this post is to show a little bit of what it is like to be on the receiving end of a defamation lawsuit, because I have been a defendant in a defamation case before. That is a story for another day, though.
Elements of a Defamation Claim
The specific elements that a plaintiff must prove in a defamation lawsuit vary from one state to another, but they generally include (1) a false statement made about a person and (2) communicated to a third party, (3) with knowledge of the statement’s falsity, (4) which causes injury to the person.
The Texas Supreme Court set out the elements of defamation slightly differently in its 1998 decision in WFAA-TV v. McLemore:
- The defendant published a statement: In this context, “published” means that the defendant communicated the statement to at least one other person.
- The statement was defamatory towards the plaintiff: This highly-circular language means that the statement was false, and that it caused injury to the plaintiff.
- With regard to the truth of the statement, the defendant acted with either (a) actual malice if the defendant is a “public official” or “public figure”; or (b) negligence if the plaintiff is a private individual.
Public Figures vs. Private Individuals
Most jurisdictions impose a higher burden of proof on people who are either public officials or public figures. “Public figures” are not just celebrities. A person could become a public figure through no intentional action of their own, such as someone featured on the news for almost any reason. Someone who becomes “internet famous” after a picture or video of them goes viral could also become a public figure, at least for a brief period of time.
Defenses to Defamation
A plaintiff must prove several very specific elements in order to prevail in a defamation claim. Defending against this type of claim often involves producing evidence to contradict one or more of the plaintiff’s elements, such as:
– Truth: A defamatory statement, by definition is false. Proving that the statement is true therefore negates the defamation claim. (Or, as the saying goes, truth is a defense to defamation.)
– Opinion: Statements of opinion are protected by the First Amendment. In a general sense, an opinion is not a statement of fact. If an opinion cannot be true or false, it cannot be defamatory. This can be a tricky distinction, which is why choice of words is so important for writers. “I think Mr. Jones is a crook,” for example, is a statement of opinion, while “Mr. Jones committed armed robbery at 3:24 p.m. on August 7” could be considered defamation.
– Good-faith belief: Texas’ definition of defamation requires proof that a defendant acted with actual malice, meaning that they knew the statement was false; or negligence, meaning that they failed to conduct an adequate investigation before making the statement. A person who investigates the subject matter of the statement and reasonably concludes that the statement is true does not commit defamation.
– Public vs. private figure: If a plaintiff claims that the defendant was negligent about the truth of the statement, they could argue that a plaintiff is a public figure required to prove actual malice.
– No damages: Even if a defendant made a false statement about the plaintiff with full knowledge that it was false, no defamation claim exists if the plaintiff suffered no damages. A defamation is similar to a claim for intentional infliction of emotional distress, but they are not the same.
Defamation Per Se
Four types of statements traditionally constitute defamation per se:
- Accusing a person of committing a crime;
- Claiming that someone has a “foul or loathsome disease”;
- Impugning a person’s ability to conduct their profession; or’
- Imputing sexual misconduct.
In a defamation per se claim, a plaintiff only has to prove that the statement is false and that the defendant published it to a third party. They do not have to prove any special damages.
To offer an example of a defamatory statement in the second category, a 1995 appellate court decision from San Antonio held that the following statements would not rise to the level of defamation per se: suggesting that a person might have AIDS, stating that a person was at risk of contracting AIDS, or claiming that someone was HIV-positive but had not yet developed AIDS.
The fourth category of defamation per se is changing with the times, so to speak. In 2012, a New York appellate court held that, despite prior court decisions, accusing a person of being gay is not defamation.
The Texas law allows a defendant in a defamation case to file a motion to dismiss the lawsuit within the first sixty days of the suit. The motion must include evidence that the conduct at issue in the lawsuit involved the defendant’s exercise of their First Amendment rights to free speech, free association, or right to petition for redress of grievances. The plaintiff must respond to the motion by producing evidence in support of each element of their claim.
If the court rules against the plaintiff, it can dismiss the case and order the plaintiff to pay the defendant’s attorney’s fees. The purpose of the law is to weed out “frivolous” defamation lawsuits before defendants incur a substantial amount of expenses.
How Freelancers Can Avoid Defamation Claims
As any lawyer might tell you, there is no surefire way to avoid being sued altogether, although anti-SLAPP laws might dissuade some of the most overtly meritless claims. A sufficiently irate individual could still try to use the threat of a defamation claim as a cudgel to silence media coverage they do not like. Here are a few tips freelance writers, blogger, and others should keep in mind:
1. Do your homework: If you don’t know if a particular statement is true or not, do not publish it until you have researched it. If you still have doubts, do more research.
2. Check your sources: Citing your sources is a good way to indicate that you have made a good-faith effort to research a claim, but it depends on the sources. If you link to a major news publication to support your statement that “Company X has been linked to multiple cases of people’s skin turning blue,” you are probably on solid ground. If your source is a blog that normally reports on UFO conspiracies and contains no outside links, you could be liable for repeating another person’s defamation.
3. Use “opinion” language: A statement could be blatant defamation or a constitutionally-protected opinion, depending on how it is worded. Mind you, any statement that fits this description is probably not ready for publication. Just remember that saying “in my opinion” is not a get-out-of-defamation-free card.
4. “Alleged” is your friend: If you are writing about accusations against a person or company, be sure to use language that makes it clear that these are only allegations or accusations. The classic example of this involves reporting on an ongoing criminal case. A person charged with armed robbery is an “alleged robber,” not a robber. A person convicted of robbery is a “convicted robber.” A person who openly admits to committing robbery is a “robber.”
Hopefully this helps. The internet is a marvelous place filled with great ideas. Don’t get too carried away, and you should be okay.
Coming soon: The right of publicity, some interesting copyright news, some possibly-interesting-to-some patent news, and more fun freelancer stuff.