How to Protect Your Business Reputation In The Internet Era – Background

Defamation Law in the United States
Defamation law in the United States is very complex. The primary reason for this complexity goes to the core of this country; the First Amendment freedom of expression. However, from earliest times, false speech about another has been considered an antisocial act and had been considered a “wrong” against society. Even the Ninth Commandment enunciates, thou shall not bear false witness against thy neighbor. As a result, there is a natural tension between the right to speak, and the responsibility for speaking truthfully about other people.

… there is a natural tension between the right to speak, and the responsibility for speaking truthfully about other people.

Under common law, an allegation that a person’s reputation was damaged by the publication of false and defamatory statements was sufficient to state a cause of action (the right to sue) for defamation, irrespective of whether the statement was an expression of fact or opinion. However, due to concerns that state law would stifle valuable public debate, the privilege of “fair comment” was incorporated into the common law as an “affirmative defense” to an action for defamation in order to balance the competing interests. The privilege of “fair comment” provides legal immunity to honest expressions of opinion on matters of legitimate public interest based on a privileged or true statement of fact. However, “fair comment” does not apply to a false statement of fact, whether expressly stated or implied from an expression of opinion nor does it apply when the comments were made with malice, spite, or ill will.

In furtherance of the common law right of “fair comment”, the United States Supreme Court imposed various limitations on the state law of defamation. Public officials/figures must prove that the statements were false and that the defendant acted with actual malice, New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130

(1967), and, to impose liability on a defendant, a plaintiff must make some showing of fault, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

In addition to the “fair comment” doctrine, the Supreme Court also addressed the level of First Amendment protection afforded various types of speech.

The first type of speech — rhetorical hyperbole, figurative speech, or parody — most often involves public officials/figures or political commentary. This type of speech is constitutionally protected under the First Amendment because these types of statements cannot reasonably be interpreted as stating facts about an individual. Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6 (1970), Letter Carriers v. Austin, 418 U.S. 264 (1974), and Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988).

The second type of speech is the most common type of defamatory speech encountered by a private citizen — mixed opinion and fact. A statement that can be reasonably interpreted as asserting or implying a false assertion of fact is actionable if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. Simply couching such statements in terms of “opinions” does not dispel these implications. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) and Milkovich v. Lorain Journal, Co., 497 U.S. 1 (1990).

So, in short, while the United States Supreme Court has both acknowledged the right of an individual or company to be free of defamatory language, it has also placed certain restrictions on a plaintiff’s ability to prosecute defamation actions. However, the substantive law of defamation continues to be governed by state tort law. While the basic elements of defamation are fairly consistent among the states, the remedies available to a plaintiff vary by state. The ultimate remedy is injunctive relief requiring a defendant to remove the offending language and prohibiting the defendant from posting further defamatory statements. Unfortunately, as more fully discussed below, injunctive relief is not available in a Florida defamation action. Let’s take a look.



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