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What is 'actual malice'?

Defamation Defenses

Michael Ehline (Attorney at Law) gives expert video advice on: What is 'actual malice'?; What must the victim prove to establish that defamation occurred?; Why do public figures and officials have a harder time proving defamation? and more...

What is 'actual malice'?

Actual malice' is a situation where a statement was made that was not only false, but that it was made recklessly, or maliciously. For example, you knew, or should have known you should have investigated to see if that statement was true, but you didn't. And because you didn't investigate to see if it was true, and it turns out it was false, you've got a problem. Because that public figure, who normally wouldn't be able to sue you for making an untrue statement, now has a "greenlight" to do it, because you acted with a reckless disregard of your duties to make sure that statement was true before publishing it.

What must the victim prove to establish that defamation occurred?

In order for the victim to prove if defamation occurred or not it really depends on the status of the victim. If the victim is a private figure the victim simply need prove that a false statement was made about the plaintiff to a third party that it was published and that the plaintiff was damaged or harmed. Usually because people didn't want to do business with the plaintiff anymore so usually the plaintiff would have to show some sort of economic damage so it's a hard burden to prove. And that's why a lot of defamation cases get thrown out. Now the burden for the public figure is a more difficult burden because that plaintiff also needs to prove in addition to the statement being false that that statement was made with malice or conscience disregard for it's truth and therefore the public figure has a much higher burden to prove. And the reason is because that public figure has voluntarily thrust him or herself into the public light.

Why do public figures and officials have a harder time proving defamation?

Public figures and public officials had a harder time proving defamation cases because they voluntarily trust them self into they public lights, and because of that it's much more difficult for them to prove up cases of defamation, they have a additional burden that they have to prove called ‘malice' they have to prove that the person who made the statement about them made the statement recklessly or field to make an adequate investigation before they publish those facts.

Who is a public official?

A public official, as a general proposition, is going to be any official who is elected by the public. It could be the sheriff, it could be your congressman, it could be your senator. In some cases lower level people, who are officials, who work for the government, can make themselves public officials by volunteering to go on television, by volunteering to answer questions. For example, an LAPD police detective, Mark Fuhrman, by volunteering to go on a news program could very easily have made himself a public official, or a public figure, and therefore the higher standards of malice would need to be proved if he was going to sue for a false statement made about him.

Who is a public figure?

A public figure could be anyone who has voluntarily thrust themselves into the public light. Public figures include people who volunteer to go on television shows or TV. Or voluntarily agree to give news statements, or have print ads about their business in the news. Those people can become public figures. Public figures also include entertainers such as Paris Hilton in more recent years, or John Travolta. Anyone who is on the big screen is pretty much a public figure.

Legal arguments available to defendants in libel cases primarily include "truth" or that they had made an adequate investigation into the truth of falsity and base upon the evidence that they had at the time that the statement was not made with "malice", and therefore public figure would not be able to show that "malice" had been included in the statement. Conversely, if it was a non-public official, the real only defense available would be "truth" that the statement was true or number two: that even if the statement was not true that the person was not harmed or damaged economically.

Does the constitution offer any protection for defamatory statements?

The US Constitution as well as the California State Constitutions both offer ultimate protection for what might be deemed defamatory statements. In fact, in California, we have legislation under Code of Civil Procedure 425.16 which allows you to file a lawsuit against someone who's suing you for defamation because you're alleging that that person is violating your right to free speech under the Constitution. Because of that, the court will conduct a mini-trial right there on the spot to determine whether or not that speech was privileged. If that speech is deemed privileged under the Constitutional First Amendment guarantees of free speech, the court will then award a verdict or a judgement against the person who brought the defamation suit and usually award that person the reasonable attorney's fees of the person who sued them. This makes defamation cases very difficult to pursue and often makes it very hard to find a defamation law attorney because of the fact that he really doesn't want to bring a claim where his client might be subjected to attorney's fees.

What is defamation 'per se'?

Defamation "per se" is a defamatory statement made about the plaintiff where damages are implied as a matters of law. Using the statement would be about the plaintiff saying that the plaintiff is a criminal, suffers from allots and disease, engages in unfair business practices or is some sort of a sexual misfeasant and/or malfeasant. In these types of situations, they law implies damages, so what normally would be the most difficult part of the defamation case, which is damages, is now implied as a matter of law and it becomes a presumption of negligent defamation. So the person who said one of those four negative things will be implied to cause damages against the plaintiff.

What is a 'libel-proof' plaintiff?

A libel-proof plaintiff is a plaintiff who is just basically such a scumbag and has just done so many horrible things, they could never possibly expect to succeed in a defamation case. Examples of people who probably couldn't sue for libel would be someone like Dr. Kavorkian, someone whose just engaged in things that are so socially reprehensible that there is no way that they could ever possibly expect to sue anybody for something that was damaging about their reputation because they have no reputation to begin with.

What does it mean when a defamatory statement was published to a third person?

A defamatory statement being published to a third person simply means that a statement, whether written or printed, is communicated to someone other than the plaintiff, whether it be in printed form or by word of mouth. That's simply all it means. It's just a statement made that was false, that was somehow distributed or communicated to a medium of people, other than, or it could be one person, but other than the plaintiff.

What are some practical methods of reducing liability for defamation?

A practical method for reducing liability in defamation cases include making a simple phone call to the plain for him or herself before printing the information or researching sources that are publicly available about the person. Just simply conducting a proper background check, instead of just recklessly printing anything because someone told you to, or because you do not like someone. Really make sure that those statements are true or as closed to being true as possible. In that way you can mitigate any potential defamation client because you have a paper trail of research and you can show that you did what is called your do diligence.