California Defamation (Libel & Slander) Law – A Legal Guide

To bring a successful defamation claim in California, you must prove four facts:

1. That someone made a false statement of purported fact about you:
2. That the statement was made (published) to a third party;
3. That the person who made the statement did so negligently, recklessly or intentionally; and
4. That as a result of the statement, your reputation was damaged.

California law recognizes two types of defamation:

• libel – where the statements are made in writing or another tangible medium; and
• slander – where the statements are made orally.

In this article, our California personal injury attorneys will discuss the following:

• 1. Libel & Slander
• 2. Elements
• 3. Free Speech Defense
• 4. Other Defenses
• 5. Damages
• 6. Statute of Limitations
• 7. No Criminal Penalties
• 8. Streisand Effect
• 9. False Light
• Additional Reading

1. Libel & Slander

Under California law, defamation is a broad term for false statements that damage your good standing. If a statement is made verbally, it is slander. If made in writing, it is libel.¹

Unlike libel, statutory rules for slander carve out certain types of oral comments that are deemed injurious. 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

2. Elements

In California, you must prove five elements to establish a defamation claim:

1. An intentional publication of a statement of fact;
2. That is false;
3. That is unprivileged;
4. That has a natural tendency to injure or causes “special damage;” and,
5. The defendant’s fault in publishing the statement amounted to at least negligence.

These elements are discussed below.

Intentional Publication of a Statement of Fact

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.

In general, if a defendant states an opinion as opposed to a fact, then there is no defamation.³ However, a statement of opinion may still constitute defamation if it is based on defamatory facts.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.⁶

False Publications

If the person who made the alleged defamatory statement was telling the truth, it is an absolute defense to an action for defamation.

In cases involving public figures or matters of public concern, the burden is on you to prove falsity. 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.

Unprivileged Publications

A statement must be unprivileged to be actionable as defamation. A statement is unprivileged if the defendant did not have the right to make it: A showing of privileged communication is a defense against a defamation lawsuit.⁷

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.

Also considered privileged includes communications made by an individual, without malice, regarding an incident of:

• sexual assault,
• harassment, or
• discrimination.⁸

Injures or Causes Special Damage

The fourth element in a California defamation action requires you to show that a publication caused injury or “special damages.” Cases fall into one of two categories regarding this showing injuries or damages:

1. Defamation “per se” – where the publication or defamatory statement in question is considered so damaging that you are entitled to sue without having to prove actual damages. 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
2. Defamation “per quod” – where the publication is not defamatory on its face and requires allegations and proof of special damages. Defamation per quod cases require the use of extrinsic evidence or explanatory information to show the libel or slander.¹⁰

Fault Needed in California Defamation Cases

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.

Though if you are a public figure – or if the alleged defamation involves a matter of public concern – you must prove affirmatively that a statement was false and made with “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.¹¹

California law also requires that “limited-purpose” public figures prove malice in order to prevail in a defamation claim.¹² A limited-purpose public figure is someone who voluntarily injects themselves or is drawn into a particular public controversy.¹³

3. Free Speech Defense

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.”

4. Other Defenses

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;
• The defendant never said anything negative about you; and/or,
• The allegedly defamatory statement is protected under California’s Anti-SLAPP statutes.¹⁴

5. Damages

If you are successful in your defamation case, you may recover damages. In general, you may be awarded three types of damages. These include:

1. General damages, which are for your loss of reputation, shame, mortification, and hurt feelings;
2. Special damages, which are for your property, trade, profession or occupation; or,
3. Punitive damages, which are awarded in the discretion of the superior court or the jury in order to punish the defendant.

6. Statute of Limitations

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 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

7. No Criminal Penalties

Defamation is not a criminal offense in California. It is a crime in 23 other states and the U.S. Virgin Islands.¹⁹

8. Streisand Effect

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 is 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.

9. False Light

A false light claim in California alleges that someone knowingly or recklessly created publicity about you in a way that unreasonably placed you in a false light. In general, you must prove the following elements in a false light suit:

1. The defendant published some information about you;
2. The information portrayed you in a false or misleading light;
3. The information was highly offensive or embarrassing to a reasonable person; and,
4. The defendant published the information with reckless disregard as to its offensiveness.

While defamation is meant to protect you from injury to your reputation, false light is meant to protect you from the embarrassment that arises from a misleading or untrue implication. (See our article on defamation vs. false light).

Public disclosure of private facts is a similar cause of action. It occurs when a person publicly disseminates private or embarrassing facts about you without:

• your consent and
• a legitimate public concern for the topic.

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Twibel Law: What Defamation and Its Remedies Look like in the Age of Twiter – Journal of High Technology Law.
• Injunctions in Defamation Cases – Syracuse Law Review.
• The Case against Expanding Defamation Law – Alabama Law Review.
• Freedom of Speech, Defamation, and Injunctions – William & Mary Law Review.
• Defamation in the Private Sector: The Libelous and Slanderous Employer – University of Dayton Law Review.

---

Legal References: