Monday, February 11, 2013

Defamation - What Is It?

Defamation.  It is a concern for every writer - or should be.  For those writing non-fiction - whether newspaper reporters, free-lance magazine writers, or authors of non-fiction books, defamation must always be a consideration.  Even those who write fiction can stumble into the area.

In a series of posts I play to explore defamation:  What is it?  Is it really a risk?  Who can be liable?  What are the different standards that apply? What privileges apply to protect writers from defamation claims?  What does the contract with my publisher say about defamation?  Am I covered by my insurance?

Defamation is one of the more complex areas of civil law.  It involves an intricate intertwining of old common law, First Amendment protections, state constitutional provisions and state statutes, court-created privileges and a sometimes-confusing maze of federal and state court decisions.

 But lets start with the very basics:  What is defamation?

Defamation is a false statement of fact about a person that damages that person's reputation.  If it is written, it is libel.  If it's spoken, it is slander.

That's simple, isn't it?  Ready to move on?  Well, maybe not quite so simple.

"John is a child molester."

 (We'll deal with the issue of identification in a later post.  But for now, let's assume that "John" sufficiently identifies a specific person.)

If the statement is true, no matter how heinous, it is not defamatory.  As many cases say, truth is an absolute defense.

But if that statement is not true, it is defamatory.  No question. It accuses John of a heinous criminal act.  It accuses him of misconduct in his profession.  It states that he has engages in a sexually deviant act.

But what if the statement is this:  "John engaged in inappropriate conduct with a child."

Is that defamatory?  What is "inappropriate conduct"?   It could be child molesting.  It could be using profanity or lifting a middle finger when children were present.  I could be turning a garden hose on an annoying 5-year-old at a backyard picnic.

A lot depends on context.  From a legal perspective, it is a question that must be answered by the judge in a case (and often later by the appellate court).

In nearly all states* the first question that must be answer by the trial judge is whether  a reasonable person could interpret the statement in a way to be a defamatory statement of fact.

It is, as lawyers say, a question of law.  Questions of law (as opposed to issues of fact) must be decided by the judge.

So in this case, the judge must decide whether the statement "John engaged in inappropriate conduct with a child" could be interpreted by reasonable persons to be defamatory.  In looking at this, the judge may take into account the circumstances and the context of the statement.  For example, if the statement was:

"John engaged in inappropriate conduct with a child.  His actions in pointing to the child's stained shirt and laughing displayed a total lack of compassion and understanding."

The judge in this case would likely find that, while boorish, the statement was not capable of defamatory meaning.

On the other hand, if the statement was "John engaged in inappropriate conduct with a child.  He took the child into a closed room and moments later the child emerged crying while John emerged with a guilty look on his face."

The judge in this situation would likely find that reasonable people are capable of taking a defamatory meaning from this statement.

At that point, it is up to the jury to decide whether in fact they will attribute a defamatory meaning to the words, or a more innocent construction.  If they decide the statement does have the defamatory meaning, they then must address whether they find the statement is true.

We'll talk more about what is, and what isn't defamatory in the next post.

photo credit: <a href="">DG Jones</a> via <a href="">photopin</a> <a href="">cc</a>

1 comment:

  1. How is John accused of misconduct in his profession - is that not an entirely separate category (unless you specify that John is a day-care provider, which perhaps might qualify)? The statement as written only appears applicable to private conduct, something outside the context of a profession. Something more along the lines of embezzling funds seems more in line with the trade/profession category.