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LIBEL AND SLANDER:
THE BASIC LAW IN CALIFORNIA
Introduction:
Libel is one of
those legal causes of action often considered as appropriate by the lay
person but, in reality, a difficult and complex matter to allege and
prove. When used in day to day language, most people consider it merely
saying something untrue about someone. Legally, when one files suit for
damages based on such causes of action, one encounters legal
requirements that are significant in order to prevail.
Defamation is the
actual word to describe a communication (“publication” is the legal
term) that is untrue and harms another person. The two types of
Defamation are verbal (slander) and written (libel.) The requirements to
prove each and to show damages for each differ markedly.
This article shall
outline the basic requirements to prove each and the particular problems
that arise when one alleges these causes of action. There is also a
discussion of the usual effective tactics in combating actions based on
defamation.
The reader is
advised to first read our article on
Torts
before proceeding with this article.
1.
Libel and
Slander: Definitions
A. Defamation
in General.
Defamation
is an invasion of the interest in reputation. It may be libel or
slander. (California Civil section 44; herein, “Civ. Code §
__.”) The tort involves (a) a publication that is (b) false, (c)
defamatory, and (d) unprivileged, and that (e) has a natural tendency to
injure or that causes special damage. Civ. Code §§ 45, 46; see
Smith v.
Maldonado
(1999) 72 Cal.App.4th 637, 645; Seelig v. Infinity Broadcasting Corp.
(2002) 97 Cal.App.4th 798, 809.
Because libel and slander are intentional torts, the defendant must have
intended the publication. But malice, or actual ill will, is not an
element of defamation. However, evidence of malice is relevant to
obtain punitive damages or to overcome certain privileges.
B.
Libel
and Slander Distinguished.
Libel
includes the more permanent forms of defamatory matter; in California,
it consists of a “writing, printing, picture, effigy, or other fixed
representation to the eye.” (Civ. Code § 45.) Slander is the more
transitory form, generally restricted to oral statements and gestures.
(See Civ. Code § 46. Electronic mail and web site postings are textbook
examples of libel.
C.
Statutory Definition of Libel.
Civ.
Code § 45 defines libel as “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 has a tendency to
injure him in his occupation.” See
Savage v. Pacific
Gas & Elec. Co.
(1993) 21 Cal.App.4th 434, 447 [statement
that journalist was participating in legal action involving a utility
while employed by trade journal covering that utility had tendency to
injure her in her profession within meaning of Civ. Code § 45.];
Rest.2d, Torts §568(1) [defining libel as
“publication of defamatory matter by written or printed words, by its
embodiment in physical form or by any other form of communication that
has the potentially harmful qualities characteristic of written or
printed words”].
2.
Common Law Rule: All Libel Is Actionable Without Proof of Special
Damage.
Under
the general common law rule, libel and slander have different effects.
As stated above, libel is more permanent in form, and is considered more
serious and harmful. If the matter is defamatory, and is in written or
other permanent form so as to amount to a libel, it is considered
actionable per se; i.e., injury is presumed to follow from the act, and
the plaintiff is not required to plead or prove special damages. The
plaintiff is always entitled, in the absence of a good defense, to a
judgment for at least nominal damages, to expose the false charges and
vindicate his or her reputation. 5 Witkin, Summary of Cal. Law (10th
ed. 2005) Torts, § 540, pp. 793 – 794.
A.
California Doctrine of Libel Per Se.
A
special meaning has been given to the term “libel per se” in
California. Where the statement is defamatory on its face, it is
said to be libelous per se, and actionable without proof of special
damage. But if it is defamation per quod, i.e., if the defamatory
character is not apparent on its face and requires an explanation of the
surrounding circumstances (the “innuendo”) to make its meaning clear, it
is not libelous per se, and is not actionable without pleading and proof
of special damages. This doctrine of libel per se has long been
established in California. Tonini v. Cevasco (1896) 114 Cal.
266, 271;
Smith, supra, 72 Cal.App.4th at 645;
Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441.
The
doctrine has been codified. “A libel which is defamatory of the
plaintiff without the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact, is said to be a libel on
its face. Defamatory language not libelous on its face is not
actionable unless the plaintiff alleges and proves that he has suffered
special damage as a proximate result thereof.” Civ. Code § 45a. See
Babcock v.
McClatchy Newspapers
(1947) 82 Cal.App.2d 528, 539 [1945 adoption
of Civ. Code § 45a “merely enacts, in code form, the rule which has long
been in force in this state”].)
In Barnes-Hind v.
Superior Court (1986) 181 Cal.App.3d 377,
the court said:
If no
reasonable reader would perceive in a false and unprivileged publication
a meaning which tended to injure the subject’s reputation in any of the
enumerated respects, then there is no libel at all. If such a reader
would perceive a defamatory meaning without extrinsic aid beyond his or
her own intelligence and common sense, then … there is a libel per se.
But if the reader would be able to recognize a defamatory meaning only
by virtue of his or her knowledge of specific facts and circumstances,
extrinsic to the publication, which are not matters of common knowledge
rationally attributable to all reasonable persons, then … the libel
cannot be libel per se but will be libel per quod,” requiring
pleading and proof of special damages.
181 Cal.App.3d at
386.
a.
Charges of Criminal Conduct.
Professor Witkin observes, “[t]he charge of commission of some kind of
crime is obviously libel per se.” 5 Witkin, Summary of Cal. Law (10th
ed. 2005) Torts, § 542, p. 795.
In
Edwards v. San Jose Printing & Publishing Soc. (1893) 99 Cal. 431, a
newspaper article stating that it was understood that a certain
corporation was putting up money to corrupt voters, and that it was
“reported that Edwards is to have charge of the sack” was held libelous
per se. The term “sack” in this connection had an established meaning
and plaintiff was not required to prove the sense in which it was used
and understood. 99 Cal. 435.
In
Boyich v.
Howell
(1963) 221 Cal.App.2d 801, a circular charged
that plaintiff, a city councilman and candidate for election, “was
convicted, fined and barred from holding union office for five years …
because he stuffed the ballot box in a union election.” The court
held that this statement was defamatory on its face. 221 Cal.App.2d at
802.
See
also
Christian Research Institute v. Alnor
(2007) 148 Cal.App.4th 71, 80 [statement on
defendant’s website that “Federal Criminal Mail Fraud Investigation” had
been launched against plaintiffs constituted libel under Civ. Code §
45].
b.
Charges of Other Misconduct or Character Defect.
The
charge may be that the plaintiff has been guilty of an act of
dishonesty, or that plaintiff has some particular defect of character.
It is not necessary that the publication charge the commission of a
crime; it is sufficient if it so reflects on the person’s integrity as
to bring him or her into disrepute. Maher v. Devlin (1928) 203
Cal. 270, 275, Stevens v. Snow (1923) 191 Cal. 58, 63 [imputing
business misconduct in single transaction or occurrence].
Thus,
falsely charging a person with “a violation of confidence reposed in him
or with treachery to his associates” is actionable per se.
Dethlefsen v. Stull
(1948) 86 Cal.App.2d 499, 502. In that case,
a former partner’s published letter stating that plaintiff received
partnership funds that he failed to deposit to the firm’s account was
held libelous on its face, even though plaintiff, technically, was not
guilty of larceny or embezzlement.
In
another case, a statement that plaintiff, a publicity agent, after
discharge from her employment, continued to use the employer’s
stationery without notifying newspapers of her change of status, thus
misleading various persons, charged a breach of confidence and trust,
and tended to injure plaintiff in her occupation. As such, it was
libelous per se. Bates v. Campbell (1931) 213 Cal. 438, 443.
c.
Epithets and Derogatory Suggestions.
California courts have held that to be liable, a defendant need not make
a direct accusation or charge of misconduct; epithets or descriptive
words or opinions that carry with them the implication of acts of
misconduct are actionable. See Newby v. Times-Mirror Co. (1916)
173 Cal. 387, 395 [statement that person is “hypocrite”]; Albertini v
Schaefer (1979) 97 Cal App 3d 822, 829 – 830 [calling attorney a
“crook” is actionable as slander per se without proof of special
damage].
In
Megarry v.
Norton
(1955) 137 Cal.App.2d 581, the plaintiffs warned the defendant to stop
illegally parking his car in front of their establishment. The
defendant hung a sign on his car which
stated, “NUTS TO YOU—YOU OLD WITCH.” The court found for the plaintiffs
and held that the words were clearly used in a derogatory sense, with
the intent to expose plaintiffs to contempt and ridicule. 137
Cal.App.2d at 583.
In
Maidman v.
Jewish Publications
(1960) 54 Cal.2d 643, the plaintiff Maidman
was a practicing attorney in Los Angeles, an active leader in the Jewish
community, and chairman of the board of the official local B'nai B'rith
paper. While representing a non-Jewish plaintiff in a trial, in
response to the non-Jewish defense counsel’s request for a continuance
for the holiday of Rosh Hashanah, plaintiff stated that it was a “joyous
holiday” on which the litigation could appropriately proceed, and the
continuance was denied. Defendants, publishers of a rival Jewish
community newspaper, had knowledge of the incident within two weeks.
More than a year later, they published an editorial sarcastically
deriding plaintiff’s statements. Plaintiff alleged these facts and
malice. The court held for the plaintiff, and concluded that the
complaint stated a cause of action for libel per se. The court stated
in part as follows:
[C]omments and opinions claimed to be libelous need not reach the
extremity of vituperation before they become libelous. Maidman, who was
allegedly a prominent leader in Jewish affairs, was accused of being
unworthy of his high position in B'nai B'rith, of knowing less about his
religion than an adolescent child and of causing all Jewry to look
ridiculous. The charges made by defendant were aptly chosen to expose
Maidman to the contempt and ridicule of the other members of B'nai
B'rith as well as of his coreligionists generally.” 54 Cal.2d at 650.
The
court also held that the editorial also tended to injure plaintiff in
his occupation as an attorney, by implying that he deliberately misled
the court in order to obtain an advantage for his client and a
disadvantage to the other parties. 54 Cal.2d at 651.
In
Williams
v. Daily Review
(1965) 236 Cal.App.2d 405, plaintiffs, doing
a public paving job, received some time extensions. At a city council
meeting, the public works director said that the work was not
progressing satisfactorily and that the contractor had been notified
that he was subject to liquidated damages. Defendant, a local
newspaper, published a report of the director’s remarks, adding that the
city’s problems “are reminiscent of an earlier situation … where a
cheaply bid job dragged on for months past the original target date.”
The court held for the plaintiff, and concluded that this was libelous
per se, impliedly charging plaintiffs “with conduct inconsistent with
the due fulfillment of what they, by virtue of their employment, had
undertaken.” 236 Cal.App.2d at 411.
In
Patton v.
Royal Industries
(1968) 263 Cal.App.2d 760, plaintiffs,
skilled workmen, quit defendant’s employ to go into business for
themselves. Defendant sent a letter to many potential customers of
plaintiffs stating that they had been “terminated” and “replaced with
personnel having more experience and knowledge.” The court held for the
plaintiffs, and concluded this statement was a serious reflection on
their abilities, and libelous per se. 263 Cal.App.2d 767.
2.
Statutory Definition of Slander.
Slander
is “a false and unprivileged publication, orally uttered,” that does one
or more of the following:
(1)
“Charges any person with crime . . .” Civ. Code § 46(1).
(2) “Tends directly to injure him in respect to his office,
profession, trade or business, either by imputing to him general
disqualification in those respects which the office or other occupation
peculiarly requires, or by imputing something with reference to his
office, profession, trade, or business that has a natural tendency to
lessen its profits.” Civ. Code § 46(3).
(3)
“[B]y natural consequence, causes actual damage.” Civ. Code §
46(5).
In
contrast with libel, only certain types of oral statements are presumed
injurious; to recover for any other utterances, actual damage must be
pleaded and proved. If damage can be proved, e.g., discharge from
employment, loss of opportunity for employment, loss of business
customers or professional clients, etc., the action can be maintained.
5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 551, p. 807.
1.
Slander Per Se.
In the
statutory definition provided in Civ. Code § 46, the first four classes
of statements are slanderous per se. See
Clay v. Lagiss
(1956) 143 Cal.App.2d 441, 448 [charge of
theft is slander per se]; Cunningham v. Simpson (1969) 1
Cal.3d 301, 307 [charge of possession of
“hot” title to car was slander per se].
2.
Injury
to Business or Professional Reputation.
Professor Witkin states that:
A
general charge of dishonesty or immorality not amounting to a charge of
crime, and not tending directly to injure the plaintiff in any business,
profession, office, or occupation, is not actionable per se, and
plaintiff must prove special damage in order to recover. But an
attack on the honesty of an employee or business person endangers his or
her position, and is actionable per se. Thus, a statement that a
jeweler was a “crook” and “got away” with a ring entrusted to him
reflected on his integrity as a bailee, and directly injured him in his
business and constituted slander per se. (Williams v. Seiglitz
(1921) 186 C[al]. 767, 772….)
5
Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 553, p. 808,
emphasis supplied.
Correia v. Santos
(1961) 191 Cal.App.2d 844 is a case very similar to the case at bar. In
that case, the plaintiff was the president of
a nonprofit corporation. The defendant called the plaintiff a liar,
“insane in command” and so forth. The court held that
the imputation of a want of integrity in one
holding a private office of confidence or trust is slander per se. In
other words, Civ. Code § 46 is not restricted to those holding public
office. 191 Cal.App.2d at 854.
See
also Oberkotter v. Woolman (1921) 187 Cal. 500. In that case, a
statement that the plaintiff, a school principal, was about to be
dropped because his superior considered him “a weak spot” in the school
system, was slanderous per se, imputing to the plaintiff a “general
disqualification” in those respects that his profession “peculiarly
requires,” within the meaning of Civ. Code § 46. 187 Cal. at 503.
See
also the following cases.
Douglas v. Janis
(1974) 43 Cal.App.3d 931, 938 [charges that
plaintiff, producer of unsuccessful TV show from which he had made
$100,000, had “taken” the money and “stolen” it from investors];
White v. Valenta (1965) 234 Cal.App.2d 243, 250
[car dealer called “son of a bitch”]; Albertini v. Schaefer
(1979) 97 Cal.App.3d 822, 829 [calling
attorney “crook”]; Kelly v. General Tel. Co. (1982) 136
Cal.App.3d 278, 285 [statement that plaintiff
employee falsified invoices]; Lipman v. Brisbane Elementary
School Dist. (1961) 55 Cal.2d 224, 234
[charge that school superintendent received “kickbacks” and engaged in
“shady dealings”]; and Mercado v. Hoefler (1961) 190
Cal.App.2d 12, 22 [statements impugning
plaintiff's vocational capacity].
3.
Rules
Applicable to Both Libel and Slander
1.
Publication of Statement.
a.
Meaning of Publication.
The
defamatory matter must be “published,” i.e., communicated to some third
person who understands its defamatory meaning and application to the
plaintiff.
Ringler Associates
v. Maryland Casualty Co.
(2000) 80 Cal.App.4th 1165, 1179.
b.
Communication to Single Person.
The
publication need not be to the “public” or to any large group;
communication to a single person is enough.
Smith v. Maldonado
(1999) 72 Cal.App.4th 637, 645; Cunningham v. Simpson (1969) 1
Cal.3d 301, 306 [bank finance officer said to
seller of car in presence of prospective buyer, “you've got a hot
title”].
c.
Statements Susceptible of Multiple Meanings.
A
party may contend that some statements are susceptible of more than one
meaning, and so are not actionable. Indeed, at one time, it was held
that language is not libelous per se if the implied defamatory charge or
insinuation leaves room for some innocent interpretation. See
Peabody v. Barham
(1942) 52 Cal.App.2d 581, 584, 126 P.2d 668
[statement in defendant’s newspaper that “Peabody’s divorcing wife … is
also his aunt” was not libelous per se, for it might imply, instead of
incestuous marriage, valid marriage to aunt by affinity (widow of
deceased uncle)].
However, this rule is no longer the law. It was repudiated in
MacLeod v.
Tribune Publishing Co.
(1959) 52 Cal.2d 536. In that case, the
court stated that language may be libelous per se despite the
possibility of an innocent interpretation. In McLeod, a dentist
who ran for a local city council alleged that defendant printed a front
page article in an election extra stating that the “People's World,” a
communist paper, had recommended his election; that the intended meaning
was that he was a communist sympathizer or fellow traveler; and that
this was false. Defendant asserted the possible innocent interpretation
that support by communists might have been given to a person opposed to
their views in order to taint him and aid in his defeat, rather than to
one sympathetic to their views. The court explicitly stated that
[s]uch
hair-splitting analysis of language has no place in the law of
defamation, dealing as it does with the impact of communications between
ordinary human beings. … It protects, not the innocent defamer whose
words are libelous only because of facts unknown to him, but the clever
writer versed in the law of defamation who deliberately casts a grossly
defamatory imputation in ambiguous language. It not only finds no
support in, but is contrary to, the provisions of section 45a, which
define, not language susceptible of only one meaning, but language that
carries a defamatory meaning on its face. It would be a reproach
to the law to hold that a defendant intent on destroying the reputation
of a political opponent … could achieve his purpose without liability by
casting his defamatory language in the form of an insinuation that left
room for an unintended innocent meaning.
52
Cal.2d at 550. See also
Forsher v. Bugliosi
(1980) 26 Cal.3d 792, 805 [“In determining
the defamatory nature of written material, the fact that some person
might, with extra sensitive perception, understand such a meaning cannot
compel the court to establish liability at so low a threshold”];
Williams v. Daily Review (1965) 236 Cal.App.2d 405, 410
[language may be libelous on its face even though susceptible of
innocent meaning]; Mullins v. Brando (1970) 13 Cal.App.3d
409, 414 [defamatory impact measured by
natural and probable effect on mind of average reader].
2.
Pleading and Proof of Defamatory Meaning (i.e. “Innuendo”).
Where
words or other matters are of ambiguous meaning, or are innocent on
their face but defamatory in light of extrinsic circumstances (i.e., not
defamatory “per se”), the plaintiff must plead and prove that they were
used in a particular meaning that makes them defamatory (the
“innuendo”).
Washer v. Bank of
America
(1943) 21 Cal.2d 822, 829. In Washer,
the complaint alleged that plaintiff had been discharged from
defendant's employ, and that defendant’s officer declared that defendant
could not reinstate anyone who “had admitted he had falsified his
expense account” and had been guilty of “flagrant insubordination”; that
the statements were intended to convey the idea that plaintiff was
guilty of the crime of embezzlement and was an unsatisfactory worker;
and that as a result, plaintiff was unable to secure employment in any
bank. The court held that the plaintiff stated a cause of action. It
noted that the word “falsify” could imply either an intentional or
unintentional act, and, because the charge might have an innocent
meaning, it was necessary to plead by way of innuendo that the
defamatory meaning was intended; and this was done. 21 Cal.2d at 828.
The court noted that the statement regarding “flagrant insubordination”
related to his qualifications as an employee, was defamatory on its
face, and no innuendo was necessary. 21 Cal.2d at 828.
3.
Pleading and Proof the
Statement was Reasonably Understood as Defamatory
(i.e. “Inducement”).
Where
the language is ambiguous, the extrinsic circumstances that show that
the third person to whom the statement was published reasonably
understood it in its derogatory sense must also be alleged (the
“inducement”). Grand v. Dreyfus (1898) 122 Cal. 58, 62. See
also Palm
Springs Tennis Club v. Rangel
(1999) 73 Cal.App.4th 1, 5 [tennis club did
not plead cause of action for libel, where it failed to plead that
readers of documents published by defendants had special knowledge of
facts from which they could discern that allegedly libelous comments
about club officer defamed club].
4.
Pleading and Proof the
Statement applied to the Plaintiff
(i.e. “Colloquium”).
If the
statements do not mention the plaintiff by name, it must be proven that
they were published or spoken concerning him or her (the “colloquium”).
See Washer v. Bank of America, supra, 21 Cal.2d at 829;
Ringler
Associates v. Maryland Casualty Co.
(2000) 80 Cal.App.4th 1165, 1179.
5.
Questions of Law and Fact.
When
the effect of the language can be determined on its face, the question
whether it is defamatory is one of law for the court. If the matter
could have two meanings, one harmless and the other defamatory, the
court must determine whether, in the light of the extrinsic facts shown,
the language was capable of the defamatory meaning claimed by the
plaintiff. If it does so determine, then the jury determines whether it
was used in that defamatory sense.
Gallagher v. Connell
(2004) 123 Cal.App.4th 1260, 1270.
3.
PRACTICALITIES OF THE LEGAL ACTIONS
To be the victim of
libel or slander can be catastrophic. One’s reputation, particularly for
integrity and ethical conduct, can be the single most vital asset a
person possesses. One only need think of the destruction of careers from
the Governor of New York, through the Senator of Alaska to the Governor
of Illinois to realize the tremendous effect opinion as to integrity can
have on a person’s future.
But, as the famous
trial attorney Louis Nizer pointed out in a closing statement, one’s
personal life and career can be more subtly destroyed. Nizer called it
“the phone that does not ring.” How often does one suffer injury because
people that were once friends or colleagues now distance themselves from
the defamed person?
It is right to be
protective of one’s reputation but it is fool hardy to overact. The main
defense of slander or libel is “truth” of the allegation, thus every
legal action based on libel or slander ends up contesting in a public
forum the very charges that were advanced. The plaintiff can find him or
herself the actual “defendant” as the judge and jury are regaled with
alleged proof of the very charges that the public has already had
published. The plaintiff must be ready to show the lack of truth in
those charges and the publicity that may arise from the trial itself can
make a bad situation worse.
And there are many
privileges that can apply to defend. For example, if the party
making the publication had a “common interest” with the party receiving
it, e.g. they both were handling an economic matter of mutual interest,
then a privilege could apply. Public figures are also held to a much
higher burden of proof in demonstrating damage from libel.
Before legal action
is undertaken, such defenses have to be carefully examined and a party
defending against claims of slander or libel should realize that winning
such a case is often a very difficult task for a plaintiff. The facts
and damages of each alleged incident must be examined by qualified legal
experts before a decision is made to turn for relief in the courts.
And all should
remember the wise words of Sacha Guitry in 1947: “What probably
distorts everything in life is that one is convinced that one is
speaking the truth because one says what one thinks.” |
