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 (constituting libel).
In this article, our California personal injury attorneys will discuss the following:
- 1. The difference between defamation, libel and slander under California law
- 2. 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
- 2.4.1. What is defamation “per se”?
- 2.4.2. What is defamation “per quod”?
- 2.5. Fault needed in California defamation cases
- 2.5.1. Who is a public figure under California defamation laws?
- 3. What about my right to free speech?
- 4. Defenses to defamation in California
- 5. What may a plaintiff recover in a California defamation case?
- 6. How long does a plaintiff have to file a defamation case?
- 7. Related cause of action – false light
Defamation is an invasion of the interest in reputation. Under California law, it’s a broad term for false statements made that cause damage to someone’s reputation.
California Civil Code (Cal. Civ. Code) 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. Cal. Civ. Code states:
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 any person with crime…;
- Imputes in a person the existence of an infectious, contagious, or loathsome disease;
- Tends directly to injure him in respect to his office, profession, trade or business…;
- Imputes to a person 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, a plaintiff 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 the person to whom reference is made.
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.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
In California defamation lawsuits, plaintiffs 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 another person, 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 the plaintiff 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.6
California courts have codified several privileged communications in Cal. Civ. Code § 47. According to this section, some examples of privileged publications include publications made:
- In the proper discharge of an official duty:
- In a legislative or judicial proceeding;
- By a fair and true report in, or a communication to, a public journal of a judicial, legislative, or another public official proceeding; and,
- 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.
The last example is known as the common interest privilege and it is a conditional 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, the plaintiff has the burden of defeating it by showing malice.7
The fourth element in a California defamation action requires a plaintiff to show that a publication caused injury or “special damages.” When it comes to this showing, 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 the plaintiff is 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.
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.
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.
As with any personal injury in California, the defendant must have acted with a degree of legal culpability for the plaintiff to be entitled to damages. However, the level of culpability required in a California defamation case depends on whether the plaintiff is a public or private figure.
When the plaintiff is a private individual, he or she is only required to prove that the defendant was negligent in making a defamatory statement.
A public figure, however, must prove affirmatively that a statement was false. He or she must also prove “actual malice.” This means that the defendant made the defamatory statement either with knowledge that it was false or with reckless disregard for the truth.
In California, to classify a person as a public figure, the person must have achieved such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. Some examples of a public figure under California law include:
- An author;
- A television personality;
- The founder of a church; and,
- A real-estate developer.
California law also requires “limited-purpose” public figures“to prove malice in defamation actions.
A limited-purpose public figure is considered different than a public figure.
A limited-purpose public figure is a person who voluntarily injects himself or is drawn into a particular public controversy.8
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.
The First Amendment to the United States Constitution protects the right of free speech. But, 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 wasn’t published;
- The statement was privileged;
- The statement was an opinion or fair comment on a matter of public interest;
- The statement wasn’t made negligently or with malice; and/or,
- The defendant never said anything negative about the plaintiff.
An experienced California defamation attorney can advise you on which, if any, defenses might apply to your defamation suit.
If a plaintiff is successful in his or her defamation case, that party may recover damages.
In general, a plaintiff may be awarded three types of damages. These include:
- General damages, which are damages for the plaintiff’s loss of reputation, shame, mortification, and hurt feelings;
- Special damages, which are damages to the plaintiff’s 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 a plaintiff may be awarded will most likely depend on the facts and circumstances of a given case.
In California, a lawsuit for defamation must be commenced within one year.
The one-year period (the” limitations period” or “statute of limitations”) starts running when the plaintiff knows – or, in the exercise of reasonable diligence, should have known – about the defendant’s wrongful actions.
A false light claim in California creates a right to sue when someone knowingly or recklessly creates publicity about another person in a way that unreasonably places the other person in a false light.
In general, a plaintiff in a false light suit must prove the following elements:
- The defendant published some information about the plaintiff;
- The information portrayed the plaintiff 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 one publically disseminates private or embarrassing facts about a person, without the person’s consent, and without a legitimate public concern for the topic.
While defamation is meant to protect a person from injury to his reputation, false light is meant to protect a person 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 section § 46 for the full text
- Gregory v. McDonell Douglas Corp. (1976) 17 Cal.3d 596, 601.
- Copp v. Paxton (1996) 45 Cal. App. 4th 829.
- Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385.
- Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.
- 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.
- Copp v. Paxton, supra.