Q&A: defamation claims in USA

Defamation claims

What key legislation and case law serve as the basis for defamation claims in your jurisdiction?

In the United States, defamation claims are governed primarily by individual state or territory law against a backdrop of federal constitutional principles. Each state or jurisdiction within the United States, including Washington, DC, has its own set of statutory and common law standards that must be ascertained for any defamation claim. The First Amendment to the US Constitution imposes minimum standards on defamation claims that apply in all states or territories.

The leading case on defamation law is New York Times v Sullivan (1964), where the US Supreme Court held that a defamation plaintiff who is a public official - in addition to establishing that challenged statements are false - must prove, with ‘convincing clarity,’ that the defendant published the statements with ‘actual malice,’ meaning awareness that the statements were false or reckless disregard for whether the statements were false.

Additionally, the federal Communications Decency Act provides that internet platforms are not treated as the publishers of content posted by third parties on their platforms (similar to an ‘innocent hosting’ defence).

What is the test to determine whether words published are defamatory? Must the claimant show actual harm or loss?

Most states’ defamation laws include as the elements of defamation claims (1) a defamatory statement concerning the plaintiff that (2) is disclosed (‘published’) to at least one third party, (3) is false, (4) is published with a degree of fault rising at least to negligence, and (5) either causes actual (or ‘special’) harm or is actionable regardless of actual harm (defamation ‘per se’).

A statement is defamatory if it tends to damage another’s reputation so as to lower her in the esteem of the community. Actual harm is not necessary to make a statement defamatory, but it may be necessary to establish liability regarding certain types of statements and to recover damages. The incremental harm doctrine may bar a plaintiff from recovering where the challenged statement causes no, or negligible, ‘incremental’ harm in the context of unchallenged statements.

Does your jurisdiction distinguish between libel and slander?

Libel (written false statements) and slander (oral or otherwise transitory false statements) are both forms of defamation. The distinction between libel and slander was significant historically but has narrowed under modern defamation law.

In states maintaining a distinction between libel and slander, the distinction is relevant largely to whether the plaintiff must plead and prove ‘special’ harm or actual pecuniary loss to establish liability. A plaintiff alleging slander must prove special harm unless the statement falls within specific categories of ‘slander per se,’ in which case special harm is presumed.

Other states, such as Illinois, apply the same rules to defamatory statements whether the statement is written or oral.

Who can sue in defamation and must the claimant be named in the publication in order to bring a claim? Are there any key differences between litigation involving individual and corporate claimants?

A plaintiff need not be named specifically to sue over a statement, so long as a reasonable audience would understand that the statement refers to the plaintiff.

Corporations can sue for defamation and pursue special damages. A corporate plaintiff must show that the corporation itself has been defamed, separate from statements aimed only at officers, agents or shareholders. Courts have taken different approaches to determine whether a corporate plaintiff qualifies as a ‘public figure’ and must therefore prove a higher degree of fault. Some courts analyse a corporate plaintiff’s general degree of fame. Others have required a nexus between the corporate plaintiff’s advertising and the allegedly defamatory statements. Others treat all corporations as public figures by default.

What key defences are available to a claim in defamation?

• Substantial truth. In most states, it is a complete defence to prove that a statement is ‘substantially true,’ regardless of the defendant’s degree of fault. ‘Substantial truth’ does not require exact accuracy, so long as the ‘gist’ of the statement is true.
• Opinion. In most states, it is a complete defence to establish that a statement expresses an opinion rather than asserting a fact. States may distinguish between ‘pure’ opinion and ‘mixed’ opinion, with only ‘pure’ opinion statements protected. Courts typically find that statements containing loose, figurative or hyperbolic language are non-actionable pure opinion, so long as speakers disclose all facts on which they rely and do not imply the existence of other, undisclosed facts.
• Consent. In most states, it is a complete defence to prove that the plaintiff consented to the publication.

Many states, including New York, also recognise absolute or qualified privileges for certain types of statements, such as statements made in connection with litigation (eg, in court filings) or that report on judicial proceedings.

How do the courts approach questions of jurisdiction, for example in relation to online content that may be accessed by readers and viewers in multiple jurisdictions?

First, the court will look to the applicable state jurisdictional statute to determine whether that statute confers personal jurisdiction over the defendant. Certain states, such as New York, provide for narrower personal jurisdiction for defamation claims than for other claims. Second, the court will determine whether personal jurisdiction over the defendant comports with the US Constitution, which depends on whether the defendant has sufficient ‘minimum contacts’ with the forum state such that exercising personal jurisdiction over the defendant ‘does not offend traditional notions of fair play and substantial justice.’

Jurisdictional analysis is extremely fact-specific. The law on jurisdiction is also evolving: in Mallory v Norfolk Southern Railway Co. (2023), the US Supreme Court narrowly upheld a Pennsylvania jurisdictional statute that authorises courts to exercise personal jurisdiction over any corporation registered to do business in Pennsylvania—even if the corporation is not ‘at home’ there or lacks other contacts with the state. Absent such a statutory scheme, however, merely publishing material on a website that can be accessed within a state (absent other connections to that state) is likely not a basis for personal jurisdiction.

Who bears the burden of proof in defamation claims in your jurisdiction?

In the United States, the plaintiff generally bears the burden of proving each element of a defamation claim.

There is conflicting authority on whether a statement’s truthfulness is an affirmative defence that must be pleaded and proved by the defendant or whether falsity is an element that must be pleaded and proved by the plaintiff. The weight of authority now suggests that the US Constitution requires plaintiffs to plead and prove falsity.

What limitation period applies to claims in defamation?

Each state has its own statute of limitations for defamation claims. Statutes of limitations for defamation range from one year (eg, New York and California) to three years (eg, Massachusetts), typically running from the time of publication (rather than the plaintiff’s discovery of the allegedly defamatory statement).

Most states follow the single-publication rule, which provides one limitations period for defamation arising from any single publication, regardless of how many copies of that publication exist or how many people read it. Subsequent distribution of a previously published defamatory statement by the same speaker generally does not start a new limitations window. States that have adopted the single-publication rule typically apply the rule to online publications. Most decisions have held that retweeting and hyperlinking alone do not constitute republication and do not reset the statute of limitations.

Certain states recognise exceptions to the single publication rule. Each state also recognises circumstances in which the statute of limitations may be suspended or tolled, such as when the defendant cannot be identified or the defendant took steps to conceal its conduct.

What rules and procedures govern the collection, submission and admissibility of evidence in defamation trials? Is expert witness testimony allowed? What common evidential issues should claimants be aware of?

Federal or state rules of civil procedure and evidence will govern discovery and the admissibility of evidence at trial in defamation actions, depending on whether the action is in federal or state court.

Parties in defamation cases commonly present expert witness testimony on issues such as defamatory meaning, the statement’s reach or audience (especially online or social media statements), and the effect of the statement (including quantifying reputational injury and damages like lost business).

Are defamation cases decided by a judge or jury? How long does a case typically take to reach trial and a verdict or judgment?

Judges generally decide questions of law and juries decide questions of fact. The judge will typically determine whether a statement communicates a specific defamatory meaning and asserts facts capable of being proven true or false. The judge will also typically determine whether a statement qualifies as defamation per se and is actionable without proof of special harm. The jury will typically determine whether the defendant published the statement to a third party, whether the statement concerned the plaintiff, and whether the defendant had the requisite degree of fault regarding the statement’s falsity (eg, negligence or ‘actual malice’). In regard to damages, the judge determines which categories of harm may be considered by the jury; the jury determines what amount (if any) to award. The judge may enter judgment on discrete issues if the evidence on any such issue is so overwhelming that any other conclusion would be unreasonable.

While many defamation cases can reach trial or a judgment within a year, more complex defamation cases can take several years. For example, former Alaska Governor Sarah Palin’s high-profile defamation case against the New York Times took more than four years to reach trial in federal court in New York, after which it was appealed and re-tried at the district court, resulting in a jury verdict in favor of the New York Times.

What types of application or case management procedure are available to enable an early determination or dismissal of a claim? Does your jurisdiction have anti-SLAPP (strategic lawsuits against public participation) legislation?

Thirty-six states, and the District of Columbia, have enacted anti-SLAPP statutes, including California, New York, and Massachusetts. In 2020, the Uniform Law Commission drafted the Uniform Public Expression Protection Act (UPEPA) as a model anti-SLAPP law. Seven states - Hawaii, Kentucky, Maine, New Jersey, Oregon, Utah, and Washington - have enacted a version of UPEPA; several other state legislatures are now considering whether to do the same.

Anti-SLAPP protections vary significantly by state. California’s anti-SLAPP statute broadly protects speech related to matters of public concern. Arizona’s anti-SLAPP statute protects only against cases brought in retaliation for petitioning the government. Where they apply, anti-SLAPP statutes generally protect defendants who bring an anti-SLAPP motion by automatically staying discovery pending resolution of the motion, allowing successful defendants to recover attorneys’ fees, and allowing defendants to appeal immediately from a denial of the motion.

There is no federal anti-SLAPP law. US federal courts disagree on whether state anti-SLAPP laws apply in federal court and, if so, which elements of such laws apply.

Does your jurisdiction recognise other causes of action that are separate from but related to defamation, such as malicious falsehood? If so, what are the main differences between these and defamation claims?

Plaintiffs in defamation cases often assert a wide variety of ancillary claims, including:

• ‘false light’ invasion of privacy;
• intentional or negligent infliction of emotional distress;
• tortious interference with contract or prospective business relations;
• fraud or misrepresentation; and
• unfair trade practices.

Each of these claims has its own elements and defences. Courts generally hold that any claims based on publication of allegedly false and injurious statements are also subject to the defences that apply to defamation, even if the plaintiff did not assert a defamation claim.

Does your jurisdiction recognise any criminal offences for defamation? If so, what are the elements of these offences and how are they punished?

More than 20 states, including Massachusetts and Illinois, recognise a criminal offence for defamation, which is commonly formulated as (1) the communication of any false and defamatory matter (2) to a third person (3) without the consent of the person defamed and (4) with malice and/or actual knowledge that the statement was false and defamatory. Penalties range from fines to imprisonment terms generally of no more than one year.

Civil rights groups like the American Civil Liberties Union have challenged some of these laws, arguing that the First Amendment to the US Constitution does not tolerate criminal prosecution for defamation of public officials. There is no uniform rule prohibiting criminal defamation offences.