There have been some recent discussions on OS about bloggers being identified and sued for defamation, and Google also being sued.  Because of that, I thought a Blogger’s Primer on Libel Law might be a handy thing to have

This will also be dry and lengthy.  I don't have time to write it shorter.  And with that, I give you A Child’s Garden of Libel Law:

What is Defamation?

Defamation involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.

In general, however, all defamation actions require these elements:

(1) a false and defamatory statement concerning another;

(2) publication of the statement, without privilege, to a third party;

(3) fault on the part of the publisher, amounting at least to negligence, in ascertaining whether the statement is true or false; and

(4) either economic harm or actionability without special harm.

Where the words are innocent on their face, the plaintiff can prevail by proving that, as used, the words had a particular meaning, or innuendo, which makes them defamatory.

Defamation consists of two torts: libel and slander.  Both torts involve a false statement which defames the plaintiff. What distinguishes them is the medium of publication: libel is communicated in a more enduring form than slander. Thus, libel is a publication by writing, printing, picture, effigy, or other fixed representation to the eye.  This includes blogs like yours.

Who is Liable:

Generally, everyone who helps to publish a defamatory statement may be liable for defamation.  That's you.

Publishing:

To be actionable, a defamatory statement must be published, that is, communicated to a third party who understands both the defamatory meaning and the applicability to the plaintiff.

It is no defense that defamatory matter has already been published.  If you repeat or republish the offending statement, you can be sued. It is irrelevant that the you are quoting someone else.  A republisher is deemed to have adopted statements that are defamatory.

Further, the original author of a defamatory statement is liable for republication by other parties, if he or she had reason to believe that the republication would occur.  So, if you post, "Tell all your friends, Kerry Lauerman has sex with nerf chickens," and your friends do tell others, you could be liable for libel.  But, um, only if Kerry doesn't really do that, so I think you're safe.

Reference to the Plaintiff:

To be actionable, the defamation must refer to the plaintiff.  To satisfy the requirement, the defamatory statement need not refer to the plaintiff by name. Rather, a defamation refers to the plaintiff when the recipient of the defamatory message correctly, or mistakenly but reasonably, understands that such a reference was intended.

Even a fictional work can subject you to liability if a reasonable person would believe that the "fictional" character was in fact the plaintiff conducting him or herself as portrayed.  Freaky is so screwed.

Falsity:

The defamatory publication must be false.  A true statement, no matter how awful, cannot support an action for libel.

When the person you defame is a public figure, he or she must show that you made the objectionable statements with “malice” in its constitutional sense; that is, with knowledge that it was false or with reckless disregard of whether it was false.

Generally, the defendant must prove the statement true.  However, the First Amendment requires in all jurisdictions that where the plaintiff is a public official or public figure or where the defamation involves a matter of public concern, the plaintiff must bear the burden of proving falsity.

Truth is a complete defense to a defamation action.  No matter how harmful to reputation, a true statement is not actionable in defamation.  (However, liability may lie elsewhere, such as in a lawsuit for public disclosure of private facts.)

Statement of Fact:

Statements of fact are actionable as defamation, while opinions generally are not, but opinions may be actionable if they imply an assertion of objective fact.   That means the statement must be able to be viewed as a provably false factual assertion.

Example:  Calling marytkelly a "liar" can convey a factual imputation of specific dishonest conduct capable of being proved false, and she could sue your panties off depending on the tenor and context of the statement.

Where a statement of opinion on a matter of public concern seems reasonably to imply false and defamatory facts regarding a Rush Limbaugh or Barack Oabma, then Rush or Obama must show that those statements were made with knowledge of their false implications or with reckless disregard for their truth or falsity.  If the plaintiff is a private figure but the statement involves a matter of public concern, the plaintiff must show that the false insinuations were made with some level of fault (i.e., negligence, intent, actual malice or reckless disregard for the truth).

Jokes and Satire:

Jokes generally do not give rise to a cause of action for libel.  This rule seems to apply particularly where the plaintiff is a public official or figure.  Remember, Hustler Magazine, Inc. v. Falwell, in which a magazine "parody" which portrayed plaintiff, Jerry Falwell, as having engaged in drunken incestuous rendezvous in outhouse could not be taken seriously.  Hustler could not be held liable because the work was satire and rhetorical hyperbole, and could not be reasonably interpreted as actually alleging that Falwell had fucked his relative in the shit house.  (But you'd think that the visual created would at least support a lawsuit for emotional distress!)

If a reasonable or "fair-minded" person -- i.e., not a Republican -- would construe the statement as a joke, then it is not actionable.

Defamatory Character of Statement:

To be actionable, a statement must defame the plaintiff, that is, harm his or her reputation.  In an action for libel, the statement is defamatory if it exposes a person to hatred, contempt, ridicule, or obloquy; causes the person to be shunned or avoided; or has a tendency to injure the person in his or her occupation.  Hello!  Calling Dr. Amy!

A private plaintiff in a libel case must prove that  the false statement you posted caused him injury.  Additionally, whether or not the plaintiff must plead and prove economic loss depends on whether the statement is considered defamatory per se.

Libel Per Se:

If either a libel or a slander is defamatory “per se,” then it is actionable without economic loss by the plaintiff. If it is not defamatory per se, then it is not actionable unless plaintiff pleads and proves economic loss. 

A statement is libelous per se if it defames the plaintiff on its face, that is, without the need of extrinsic evidence to explain the statement's defamatory nature.  If the skank whore you defamed must introduce extrinsic evidence (known as the "inducement") to show either the defamatory nature of the statement (this evidence is called the "innuendo") or the statement's reference to the plaintiff (this evidence is known as the "colloquium"), then the statement is not libelous on its face and therefore not libel per se.

Proof Requirements:

Actual malice in the sense of hatred or ill will is relevant when the person you trashed in your blog is a public figure or public official.  In that case, the shithead senator who was the target of your hit piece must prove malice in the sense that you knew of the statement's falsity or you posted with reckless disregard for its truth or falsity.  That's called the "New York Times standard," and it comes from a Supreme Court case called New York Times v. Sullivan.

In other situations, when you defame a private person such as the intern Senator Buttface was diddling in your hit piece, some degree of fault with respect to falsity, usually amounting at least to negligence, is required.

Defenses:

If you post that Trig Palin has syphilis and gonorrhea, and that he lied about having it and infected 263 OS women while on a transcontinental spree of cocaine sniffing, bank robbery and anonymous sex, you could not be held liable for libel.  And the reason for that is that such a statement would be 100% true.  (Duh.  We all knew that already, right?) And truth is a complete defense to libel allegations, regardless of bad faith or malicious purpose.  If the statement about Trig is true, you are free of liability regardless of how desperately you were trying to destroy his life by posting it.

Not that such a statement would tend to harm Trig's reputation around here, anyway.

Generally, you would have to prove that the statement was true. However, constitutional requirements shift this burden to Orrin Hatch and Sean Hannity, if you post that they were along for the trip with Trig, and you are a member of the media.

The defense of truth does not permit you to escape liability by saying that you simply accurately repeated what cartouche said, if she reported Trig's trip falsely. This amounts merely to republication, for which courts hold defendants liable.

There are other privileges – both absolute and qualified – which vary by situation and jurisdiction.

The United States Supreme Court has not clarified whether public officials must prove that nonmedia defendants acted with constitutional malice.

Fair Comment:

Under the common law, a privilege of fair comment grew up which protected expressions of opinion on items of public interest, such as political matters.  Under the privilege, expressions of opinion on topics of public concern have traditionally been privileged.

To come within the privilege, the comment must be fair, not only in the sense that it must be reasonable or moderate, but in the sense that it must be published at least in part for the bona fide purpose of giving the public the benefit of commentary which it is entitled to have, rather than for an ulterior motive of causing harm to the plaintiff.

That let's out Fox News, despite their slogan.  How about your blog?