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.”