14 Defamation

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

14 Defamation

A. Definition¹

Defamation is a tort action encompassing libel — written communication and now communication by broadcast media² — and slander, spoken defamation. Defamation is an intentional tort that requires proof that the defendant intended to publish the defamatory statement and, by its very nature it cannot occur "accidentally."³ To succeed on a defamation claim the plaintiff must show a statement is defamatory and actionable.⁴ Defamatory means the statement tended to impeach the plaintiff's reputation and actionable that it injured the plaintiff. Defamation has been more fully defined as communication which tends to impeach the plaintiff's honesty, integrity, virtue, or reputation, and expose him or her to public hatred, contempt, ridicule, or obloquy, or to cause the individual to be shunned or avoided, or to be injured in his or her office, business, or occupation.⁵ The South Carolina Supreme Court has acknowledged confusion in defamation terminology in the case law.⁶ It has sought to provide clarification:

A statement is defamatory per se, or on its face, if its defamatory meaning is apparent from the language itself. It must be susceptible of only one meaning, that being a defamatory one. If an innocent construction can fairly be made of the statement, it cannot be defamatory per se. [citation omitted] Conversely, if it is necessary to refer to facts or circumstances beyond the language itself in order to make the defamatory meaning of the statement clear, it is defamatory per quod.⁷

The court compared this terminology with "actionable per se," which it said means that if defamatory, the statement is presumed injurious without proof of malice or special damages.⁸ A statement, said the court, that is actionable per se, may have its defamatory meaning "proven by the language itself or by reference to extrinsic facts (i.e., it may be defamatory per se or per quod)"⁹ The confusion arises in the use of defamation per se to mean actionable per se.¹⁰

Generally, allegations of

(1) crime¹¹
(2) loathsome disease¹²
(3) impropriety or inadequacy in performing a trade or profession,¹³ or,
(4) unchastity¹⁴ may be actionable per se.

In its most recent clarifying statement on the confused language of defamation, the court said there is important distinction to be drawn between libel and slander in assessing the question of whether something is actionable per se or not. Libel, said the court, is actionable per se if it involves "'written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous.. ."'¹⁵ Slander, however, is actionable per se only if it charges the plaintiff with commission of a crime of moral turpitude; contraction of a loathsome disease; adultery; unchastity; or unfitness in his or her business or profession. The court further stated that to the extent an earlier decision might be read to limit libel to the same categories it was overruled.¹⁶

B. Elements

The plaintiff must allege and prove the following:

(1) a defamatory meaning
(2) publication with actual or implied malice
(3) falsity
(4) publication by the defendant
(5) the message concerns the plaintiff
(6) legally presumed damages or special damages to the plaintiff.¹⁷

C. Elements Defined

1. A Defamatory Meaning

A communication is defamatory if it tends "to impeach the honesty, integrity, virtue, or reputation, or publish the natural or alleged defects, of one who is alive, and thereby expose him to public hatred, contempt, ridicule, or obloquy, or to cause him to be shunned or avoided, or to injure him in his office, business, or occupation."¹⁸ The trial court determines initially whether the statement is susceptible of having a defamatory meaning.¹⁹ If the statement is either plainly defamatory or wanting in defamatory significance, it is for the court to say so.²⁰ Circumstances extrinsic to the statement may render it defamatory when it would not ordinarily be so.²¹ When words are capable of both defamatory and non-defamatory meaning, the jury determines which meaning was in fact conveyed.²² Evidence of the surrounding circumstances may be offered by the plaintiff to show the meaning to be inferred.²³ An insinuation may be defamatory.²⁴ Conduct may also convey defamatory meaning.²⁵ An unfavorable or abuse statement is not necessarily defamatory.²⁶ Extrinsic circumstances, however, may render words of abuse actionable.²⁷ A conditional statement is not actionable.²⁸

2. Publication with Actual or Implied Malice

Malice may be implied, actual or "constitutional." Implied malice is presumed when particular defamatory statements are at issue.²⁹ The dimensions of that category are not clear, but evidently include at least words that are actionable per se.³⁰ Where a statement was found to be actionable per se because it accused the plaintiff of committing theft, a crime involving moral turpitude, common law malice and general damages were presumed.³¹Common law or actual malice consists of recklessness and ill will with a design to wantonly injure the plaintiff without cause.³² "Constitutional malice" is the standard when the First Amendment applies.³³ It is the publication of a defamatory message with knowledge of its falsity or reckless disregard for its truth.³⁴ The term actual malice is often used to describe this standard, thereby confusing common law and constitutional malice. To do so, however, is error.³⁵ The plaintiff must plead and prove "constitutional malice" where he or she is a public official³⁶ or a "public figure"³⁷ allegedly defamed in matters of public interest or concern.

3. Falsity

A defamatory statement is presumed false at common law.³⁸ The plaintiff therefore does not have the burden of proving falsity.³⁹ Instead, truth is an affirmative defense,⁴⁰the burden of proof of which is on the defendant.⁴¹ However, where First Amendment protections are involved, the burden is on the plaintiff to prove falsity.⁴² A plaintiff may meet the burden by showing the defendant omitted material information.⁴³

4. Publication by the Defendant⁴⁴

The statement at issue must have been communicated by the defendant or someone authorized to speak for the defendant.⁴⁵ For there to be actionable defamation, the statement must have been communicated to someone other than the plaintiff.⁴⁶ The burden of proving publication is on the plaintiff.⁴⁷ And, where a writer cannot be reasonably charged with knowledge that a third person might obtain and read the defamatory material, no publication occurs.⁴⁸ For the purposes of this element, a spouse is a third party.⁴⁹ However a communication⁵⁰ to a servant or business associate in the ordinary course of business is not actionable.⁵¹ It must be determined whether a privilege exists in such communications,⁵²in which case the plaintiff may defeat a conditional privilege by showing malice or communication exceeding the bounds of the privilege.⁵³

Ordinarily, the question of whether publication has occurred is for the jury.⁵⁴ Evidence that slanderous remarks were heard by a third party or that third persons were present and close enough to hear the words spoken is sufficient to create a jury question on the issue of publication even if the third person denies having heard the words.⁵⁵

5. The Message Concerns the Plaintiff

The alleged defamatory statement must be shown to be about the plaintiff, or if the plaintiff is not explicitly identified, that the statement was interpreted as being about the plaintiff.⁵⁶ The general rule is that defamation of a group does not allow an individual member of the group to maintain an action, but this rule is inapplicable to a small group.⁵⁷Under the Rules of Civil Procedure:

In pleading libel or slander it is not necessary to state in the pleading any extrinsic facts for the purpose of showing the application to the pleader of the defamatory matter out of which the action arose; but it is sufficient to state generally that the same was published or spoken concerning the pleader.⁵⁸

6. Legally Presumed Damages or Special Damages to the Plaintiff

For recovery, the plaintiff must show pecuniary or material loss, known as special damages which consist of identifiable economic or material loss,⁵⁹ or damages that are legally presumed. The latter includes embarrassment, humiliation, and mental suffering as a result of injury to reputation.⁶⁰ It is, however, unconstitutional to presume damages where the First Amendment is applicable.⁶¹

D. Defenses

Truth of the statement⁶² and consent⁶³ are both defenses to defamation. Additionally, self-publication of the allegedly defamatory statement may bar recovery.⁶⁴

The statute of limitations applicable to actions for libel or slander is two years⁶⁵ running from the time of the defamatory statement, not its discovery.⁶⁶

The South Carolina Tort Claims Act⁶⁷ waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action.⁶⁸ The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.⁶⁹ A limitation specifically applicable to an action for defamation is that governmental entities⁷⁰are not liable for a loss resulting from "employee conduct ... which constitutes ... actual malice ...".⁷¹ Thus, when a defamation claim requires the plaintiff to show actual malice, the waiver of immunity does not apply.⁷²

While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,⁷³ the decision does not have retroactive application.⁷⁴ There is a statutory limitation on liability...