To establish a defamation claim in California, you must prove four facts:
- That someone made a false statement of purported fact about you:
- That the statement was made (published) to a third party;
- That the person who made the statement did so negligently, recklessly or intentionally; and,
- That as a result of the statement, your reputation was damaged.
California law recognizes two types of defamation:
- libel and
The main difference is whether a defamatory statement was made
- verbally (constituting slander) or
- in writing or other tangible medium (constituting libel).
In this article, our California personal injury attorneys will discuss the following:
- 1. What is the difference between defamation, libel and slander under California law?
- 2. What are the elements of a California defamation case?
- 2.1. Intentional publication of a statement of fact
- 2.2. False publications
- 2.3. Unprivileged publications
- 2.4. Injures or causes special damage
- 2.5. Fault needed in California defamation cases
- 3. What about my right to free speech?
- 4. What are defenses to defamation in California?
- 5. What may I recover in a California defamation case?
- 6. How long do I have to file a defamation case?
- 7. Is defamation a crime?
- 8. What is the Streisand effect?
- 9. Related cause of action – false light
Defamation is an invasion of the interest in reputation. Under California law, it is a broad term for false statements made that cause damage to someone’s good standing.
California Civil Code (Cal. Civ. Code) §44 states that defamation is affected by either libel or slander.1 If a statement is made verbally, it is slander. If made in writing, it is libel.
Cal. Civ. Code §45 and Cal. Civ. Code §46 provide the definitions for both libel and slander:
Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which tends to injure him in his occupation.
In some states, libel can sometimes be charged as a crime and be punishable by a fine and jail time. However, in California, people who have been defamed are limited to their right to recover damages in a civil lawsuit.
According to Cal. Civ. Code §46, slander is “a false and unprivileged publication, orally uttered,” that does one or more of the following:
- Charges you with a crime…;
- Imputes in you the existence of an infectious, contagious, or loathsome disease;
- Tends directly to injure you in respect to your office, profession, trade or business…;
- Imputes to you impotence or a want of chastity; or
- Which, by natural consequence, causes damage.2
Unlike libel, statutory rules for slander carve out certain types of oral comments that are deemed injurious.
Again, both libel and slander are different types of defamation.
In California, you must prove five elements to establish a defamation claim:
- An intentional publication of a statement of fact;
- That is false;
- That is unprivileged;
- That has a natural tendency to injure or causes “special damage;” and,
- The defendant’s fault in publishing the statement amounted to at least negligence.
Since California law treats defamation as an intentional tort, a defendant must have intended the specific publication.
A publication means communication to some third person who understands
- the defamatory meaning of the statement and
- its application to you.
A publication need not be to the public at large. A communication to a single person is sufficient.
With regards to statements of “fact,” a large issue arises in the context of whether a statement was either
- a statement of fact or
- a statement of opinion.
In general, if a defendant stated an opinion, as opposed to a fact, then there is no defamation. Over-generalizations and substantially true statements also do not generally qualify as defamation.3
However, a statement of opinion may still constitute defamation if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. The main determination is whether a reasonable person could conclude that the published statements imply a provably false factual assertion.4
The determination of whether a statement expresses fact or opinion is a question of law for the trial court, unless
“the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.”5
Note that when you sue for libel or slander, the best practice is to use the “exact words” of the defamatory statement in the pleadings. However, it may be enough in slander cases for you to convey the substance of what was said rather than the exact words.6
In California defamation lawsuits, you must present evidence that a statement of fact is provably false.
If the person who made the alleged defamatory statement was telling the truth, it is an absolute defense to an action for defamation.
For example, if a person is spreading a rumor about you, and this rumor is true, there is no defamation.
In cases involving matters of purely private concern, the burden of proving the truth is on the defendant.
A defendant does not have to show the literal truth of every word in an alleged defamatory statement. It is sufficient if the defendant proves true the substance of the charge.
In cases involving public figures or matters of public concern, the burden is on you to prove falsity.
A statement must be unprivileged to be actionable as defamation. This is also to say that a showing of privileged communication is a defense against a defamation lawsuit.7
California courts have codified several privileged communications in Cal. Civ. Code § 47. According to this section, some examples of absolute privileged publications include statements made:
- In the proper discharge of an official duty:
- In a legislative or judicial proceeding; or
- By a fair and true report in, or a communication to, a public journal of a judicial, legislative, or another public official proceeding.
The above remain privileged no matter what, even if they include statements that would otherwise be considered defamatory. Meanwhile, the following is an example of a common interest privilege (a.k.a. conditional privilege):
- A communication, without malice, to a person interested therein,
- 1) by one who is also interested, or
- 2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or
- 3) who is requested by the person interested to give the information.
This common interest privilege is a qualified privilege because it only applies to “communication without malice.”
The privilege is lost if the publication was actuated by malice. Once the defense has demonstrated that the qualified privilege applies, you have the burden of defeating it by showing malice.
Journalists, for example, have qualified privilege to write about and discuss public-interest matters. If they get the facts wrong, they should not be held liable unless they acted with actual malice.8
The fourth element in a California defamation action requires you to show that a publication caused injury or “special damages.” When it comes to this showing injuries or damages, California defamation cases fall into one of two categories. These include:
- Defamation “per se”
- Defamation “per quod”
In some defamation cases, the publication or defamatory statement in question is considered so damaging that you are entitled to sue without having to prove actual damages.
Such statements constitute defamation per se under California law. Per se is a Latin term meaning “of itself.” Depending on whether the statements are written or spoken, this could be referred to as slander per se or libel per se.
California law has a broad definition of “per se” defamation. It consists of anything that is damaging on its face without further explanation. Examples include false statements that:
- call you a communist;
- claim you have an infection, contagious, or loathsome disease;
- claim you are unchaste or impotent;
- harm you in your job (business, trade, profession, office);
- accuse you of committing, being indicted for, being convicted of, or being punished for a crime;
- charge you with treachery against your associates;
- charge you with violating the confidence reposed in you.
- subject you to public contempt, hatred, or ridicule; and
- cause you to be shunned or avoided.
Most “per se” cases occur when someone falsely accuses another person of having committed a crime or being unfit to practice the person’s trade, business, or profession.9
In California, if a defamation case is not categorized as “per se,” it is defamation “per quod.” Per quod is a Latin term meaning by which or whereby.
If a defamatory publication is “per quod,” it means that the publication
- is not defamatory on its face and
- requires allegations and proof of special damages.
Examples of special damages might include (but are not limited to):
- lost profits;
- decreased business traffic; and/or,
- adverse employment consequences.
Defamation per quod cases require the use of extrinsic evidence or explanatory information to show the libel or slander.10
As with any personal injury in California, the defendant must have acted with a degree of legal culpability for you to be entitled to damages. However, the level of culpability required in a California defamation case depends on whether you are a public or private figure.
When you are a private individual, you are only required to prove that the defendant was negligent in determining whether the statement at issue was true or not.
A public figure, however, is held to a higher standard. Public figures must prove affirmatively that a statement was false.
As a public figure, you must also prove “actual malice.” This means that the defendant made the defamatory statement either
- with knowledge that it was false (in other words, intentionally lied) or
- with reckless disregard for the truth.
Likewise, when an allegedly defamatory statement involves a matter of public concern (as opposed to a private matter), you have the burden to prove that the defendant acted with malice.11
In California, to classify a person as a public figure, the person must have achieved such pervasive fame, prominence, or notoriety in the community that they became a public figure for all purposes and in all contexts. Some examples of a public figure under California law include:
- An author;
- Public officials/politicians in government.
- A television or multi-media personality;
- The founder of a church;
- A real-estate developer; and
- Other celebrities.
California law also requires that “limited-purpose” public figures prove malice in order to prevail in a defamation claim.
A limited-purpose public figure is different than an all-purpose public figure. A limited-purpose public figure is a person who voluntarily injects themself or is drawn into a particular public controversy.12
As examples, the following persons have been considered limited-purpose public figures under California defamation law:
- The president of two corporations that opposed rezoning issues affecting his property; and,
- A self-proclaimed expert in earthquake safety.13
The First Amendment to the United States Constitution protects the right of free speech. However, this right is not absolute.
The United States Supreme Court has long held that there is “no constitutional value in false statements of fact.”
There are numerous defenses available in a California defamation case. Some have been touched on already. A few of the more common defenses include:
- The defendant’s statement was true;
- The statement was not published;
- The statement was privileged;
- You gave express, informed, implied, or unanimous consent to the publication;
- The statement was an opinion or fair comment on a matter of public interest;
- The statement was not made negligently or with malice; and/or,
- The defendant never said anything negative about you.
Another potential defense is that the allegedly defamatory statement is protected under California’s Anti-SLAPP statutes. SLAPPs (Strategic Lawsuits Against Public Participation) are frivolous lawsuits filed without merit and in bad faith for the purpose of intimidating, silencing, or censoring the alleged defamer.
In order for a defamation case to be dismissed on Anti-SLAPP grounds, the court has to find that:
- The defendant was exercising their right of petition or free speech regarding a public issue, and
- You did not demonstrate any probability that you would win the defamation case.14
An experienced California defamation attorney can advise you on which, if any, defenses might apply to your defamation suit.
If you are successful in your defamation case, you may recover damages.
In general, you may be awarded three types of damages. These include:
- General damages, which are damages for your loss of reputation, shame, mortification, and hurt feelings;
- Special damages, which are damages for your property, trade, profession or occupation; or,
- Punitive damages, which are damages awarded in the discretion of the superior court or the jury, to be recovered in addition to general and special damages, and to be awarded for the sake of example and by way of punishing a defendant.
The specific type(s) of damages you may be awarded will most likely depend on the facts and circumstances of a given case.
In general, California’s statute of limitations to bring a defamation lawsuit is one year after the untrue statement was first published or spoken.15
Since California abides by the “single publication rule,” the one-year clock starts running when the defamatory statement first appears. The clock does not restart every time the same statement is subsequently published (such as through a retweet).16
Though if the defamatory statement is edited, then it is likely that the one-year clock will restart with the first publication of the revised version.17
Note that in some cases, this one-year time limit does not start running until you discover (or reasonably should have discovered) the defamation. This “discovery rule” is typically applied when the untrue statement is not public knowledge or difficult to find.18
Defamation is not a criminal offense in California. Though it is a crime in 23 other states plus the U.S. Virgin Islands.19
The Streisand effect is when a person attempts to block information from becoming public, but this attempt only draws more attention to the information.20 Even if you end up prevailing on a defamation claim, it may be a pyrrhic victory if the case attracted more attention than the original defamation did.
Merely writing a cease and desist letter could cause damage if it ends up being published.
If you have been defamed, consult with an attorney to discuss the pros and cons of moving forward with the case and how best to keep it under the radar.
A false light claim in California creates a right to sue when someone knowingly or recklessly creates publicity about you in a way that unreasonably places you in a false light.
In general, you must prove the following elements in a false light suit:
- The defendant published some information about you;
- The information portrayed you in a false or misleading light;
- The information was highly offensive or embarrassing to a reasonable person; and,
- The defendant published the information with reckless disregard as to its offensiveness.
Public disclosure of private facts is a similar cause of action. A form of invasion of privacy, this tort occurs when a person publicly disseminates private or embarrassing facts about you, without your consent, and without a legitimate public concern for the topic.
While defamation is meant to protect you from injury to your reputation, false light is meant to protect you from the offense or embarrassment that arises from a misleading or untrue implication. (See our article on defamation vs fight light).
Cases in other states…
- See California Civil Code §44.
- See California Civil Code sections § 45 & § 46. See also Mattel, Inc. v. Luce (2002) 121 Cal.Rptr.2d 794.
- Gregory v. McDonell Douglas Corp. (1976) 17 Cal.3d 596. See also Mireskandari v. Edwards Wildman Palmer LLP (
- Copp v. Paxton (1996) 45 Cal. App. 4th 829.
- Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.
- See Okun v. Superior Court (1981) 29 Cal.3d 442 (re. special pleading standards: “Nor is the allegation defective for failure to state the exact words of the alleged slander…we conclude that slander can be charged by alleging the substance of the defamatory statement.“).
- Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.
- Cal. Civ. Code § 47. Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 370-371. See also Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 847-848. Note that these types of privilege are recognized under California law: absolute, fair report, neutral report, and qualified. See also Gertz v. Robert Welch, Inc. (1972) 418 US 323.
- Jimeno v. Commonwealth Home Builders (Court of Appeal, Second District, Division Two, 1920) 47 Cal. App. 660 (defining defamation per se as statements “that tend to expose the plaintiff to public hatred, contempt, ridicule, aversion, or disgrace, and to induce an evil opinion of him in the minds of right-thinking persons and deprive him of their friendly intercourse or society”). See, for example, Del Junco v. Hufnagel (Court of Appeal, Second District, Division 3, 2007) 150 Cal. App. 4th 789 (it was defamation per se when defendant said that plaintiff had insufficient medical training to operate); Albertini v. Schaefer (Court of Appeals of California, Second District, Division Four, 1979) 97 Cal. App. 3d 822 (it was defamation per se to say that an attorney was a “crook”); Montandon v. Triangle Publication, Inc. (Court of Appeals of California, First District, Division Two, 1975) 45 Cal. App. 3d 938 (it was defamation per se to call a woman a “call-girl”); Nguyen-Lam v. Cao (Court of Appeal of California, Fourth Appellate District, Division Three, 2009) 171 Cal. App. 4th 858; Bates v. Campbell (1931) 213 Cal. 438; Ray v. Citizen-News Co. (Court of Appeal of California, Second Appellate District, Division One, 1936) 14 Cal. App. 2d 6; Dethlefsen v. Skull (Court of Appeal of California, First Appellate District, Division Two, 1948) 86 Cal. App. 2d 499. Note that unlike California, most states recognize only four kinds of defamation per se.
- Slaughter v. Friedman (1982) 32 Cal. 3d 149 (a dental patient’s allegations that the dentist overcharged and performed unnecessary procedures interfered with the dentist’s “economic relations with his patients”. Unlike with defamation per se, “the [statement’s] injurious character or effect [must] be established by … proof”).
- Stolz v. KSFM 102 FM (Court of Appeal of California, Third Appellate District, 1994) 30 Cal. App. 4th 195. See also Brown v. Kelly Broad. Co. (1989) 48 Cal. 3d 711, 747 (“[A] publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under [Civil Code] section 47(3) regardless of whether the communication pertains to a matter of public interest. Thus, a private-person plaintiff is not required by section 47(3) to prove malice to recover compensatory damages.”).
- Copp v. Paxton (1996) 45 Cal. App. 4th 829 (Limited-purpose public figures “thrust themselves to the forefront of particular controversies in order to influence the issues involved.” Meanwhile, all-purpose public figures attract “attention and comment” on all types of public and personal matters.). Young v. CBS Broadcasting, Inc. (Court of Appeal of California, Third Appellate District, 2012) 212 Cal. App. 4th 551 (“A public official or a limited public figure must prove the defendant published defamatory statements about the plaintiff with actual malice, or, in other words, with knowledge of the statements’ falsity or in reckless disregard of their truth or falsity.“).
- Copp v. Paxton (1996) 45 Cal. App. 4th 829. Kaufman v. Fid. Fed. Sav. & Loan Ass’n (Court of Appeal of California, Fourth Appellate District, Division Two, 1983) 140 Cal. App. 3d 913.
- Lafayette Morehouse, Inc. v. The Chronicle Publ’g Co. (Court of Appeal, First District, Division Five, 1996) 37 Cal. App. 4th 855. Code of Civil Procedure 425.16.
- California Civil Procedure, Code § 340.
- Traditional Cat Ass’n, Inc. v. Gilbreath (Court of Appeal, Fourth District, Division One, 2004) 118 Cal. App. 4th 392 (“the cause of action will accrue upon the first general distribution of website publications to the public.”). Cal. Civ. Code 3425.1-3425.5.
- LegacyQuest v. Rosen (Court of Appeals of California, First District, Division One, 2012) No. A129177 (“changes to defamatory material on a website may begin a new limitations period.”).
- Shively v. Bozanich (2003) 31 Cal. 4th 1230.
- Map of States with Criminal Laws Against Defamation, ACLU. US Virgin Islands Code 1171-1183.
- Mario Cacciottolo, The Streisand Effect: When censorship backfires, BBC (June 15, 2012).