C. Elements Defined

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

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.³¹ Common 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. A South Carolina federal court has said that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions.³⁸

3. Falsity

A defamatory statement is presumed false at common law.³⁹ The plaintiff therefore does not have the burden of proving falsity.⁴⁰ Instead, truth is an affirmative defense,⁴¹ the burden of proof of which is on the defendant.⁴² However, where First Amendment protections are involved, the burden is on the plaintiff to prove falsity.⁴³ A plaintiff may meet the burden by showing the defendant omitted material information.⁴⁴

4. Publication by the Defendant⁴⁵

The statement at issue must have been communicated by the defendant or someone authorized to speak for the defendant.⁴⁶ For there to be actionable defamation, the statement must have been communicated to someone other than the plaintiff.⁴⁷ The burden of proving publication is on the plaintiff.⁴⁸ And, where a writer cannot be reasonably charged with knowledge that a third person might obtain and read the defamatory material, no publication occurs.⁴⁹ For the purposes of this element, a spouse is a third party.⁵⁰ However a communication⁵¹ to a servant or business associate in the ordinary course of business is not actionable.⁵² It must be determined whether a privilege exists in such communications,⁵³ in which case the plaintiff may defeat a conditional privilege by showing malice or communication exceeding the bounds of the privilege.⁵⁴

Ordinarily, the question of whether publication has occurred is for the jury.⁵⁵ 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.⁵⁶

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.⁵⁷ 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.⁵⁸ Under 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.⁵⁹

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,⁶⁰ or damages that are legally presumed. The latter includes embarrassment, humiliation, and mental suffering as a result of injury to reputation.⁶¹ It is, however, unconstitutional to presume damages where the First Amendment is applicable.⁶²

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Notes:

^[18] Smith v. Bradstreet, 63 S.C. 525, 41 S.E. 763 (1902); Fulton v. Atlantic Coast Line R. Co., 220 S.C. 287, 67 S.E.2d 425 (1951); Timmons v. News & Press, Inc., 232 S.C. 639, 103 S.E.2d 277 (1958); Scott v. McCain, 272 S.C. 198, 250 S.E.2d 118 (1978). See also McBride v. Sch. Dist. of Greenville County, 389 S.C. 546, 698 S.E.2d 845 (Ct. App. 2010) (in defamation action, allegation by principal that former teacher stole school property presented jury question where plaintiff introduced evidence that statement was false).

^[19] White v. Wilkerson, 328 S.C. 179, 493 S.E.2d 345, 347 (1997); Adams v. Daily Telegraph Printing Co., 292 S.C. 273, 356 S.E.2d 118 (1986), aff'd, 295 S.C. 218, 367 S.E.2d 702 (1988); Jackson v. Record Pub. Co., 175 S.C. 211, 178 S.E. 833 (1934).

^[20] Black v. State Co., 93 S.C. 467, 77 S.E. 51, 54 (1913).

^[21] Costas v. Florence Printing Co., 237 S.C. 655, 118 S.E.2d 696 (1961) (if alleged defamatory words are not defamatory on their face, but derive defamatory impact from extrinsic facts and circumstances, those facts and circumstances must be set forth and connected with words in proper averment); Mains v. K-Mart Corp., 297 S.C. 142, 375 S.E.2d 311 (Ct. App. 1988) (innuendo is pleading term, part of complaint in defamation explaining expressions alleged to be defamatory; it is necessary only where intent may be mistaken or cannot be collected from defamatory matter itself). See also Bell v. Clinton Oil Mill, 129 S.C. 242, 124 S.E. 7, 10 (1924):

The rule at common law was that, if the alleged defamatory statement was not upon its face applicable to the plaintiff or was not actionable per se, the plaintiff's complaint must show, by what was termed the inducement, the extrinsic circumstances which coupled with the language used affected the construction and rendered it actionable ... and by what was termed the innuendo, giving point or meaning to the matters expressed before in the charge ..., not as stating new facts, but the construction which the defendant intended and the bystanders understood. The import of the words used, coupled with the inducement, the innuendo cannot enlarge, extend or change.

^[22] Timmons v. News & Press, Inc., 232 S.C. 639, 103 S.E.2d 277 (1958); Duncan v. The Record Pub. Co., 145 S.C. 196, 143 S.E. 31 (1927); Black v. State Co., 93 S.C. 467, 77 S.E. 51, 54 (1913).

^[23] Timmons v. News & Press, Inc., 232 S.C. 639, 103 S.E.2d 277 (1958) (plaintiff may offer evidence of surrounding circumstances from which defamatory meaning may be inferred); Lily v. Belks Department Store, 178 S.C. 278, 182 S.E. 889, 892 (1935).

^[24] Fountain v. First Reliance Bank, 398 S.C. 434, 730 S.E.2d 305 (S.C. 2012) (statements may be either defamatory on their face, or defamatory by way of innuendo and mere insinuation is as actionable as positive assertion if it is false and malicious and meaning is plain); Eubanks v. Smith, 292 S.C. 57, 354 S.E.2d 898 (1987) (mere insinuation actionable as positive assertion if false and malicious and meaning plain); Tyler v. Mack Stores, Inc., 275 S.C. 456, 272 S.E.2d 633, 634 (1980); Timmons v. News & Press, Inc., 232 S.C. 639, 103 S.E.2d 277 (1958) (mere insinuation actionable if false, malicious, and meaning plain); Duncan v. The Record Pub. Co., 145 S.C. 196, 143 S.E. 31 (1927); Mains v. K-Mart Corp., 297 S.C. 142, 375 S.E.2d 311 (Ct. App. 1988); Richardson v. Sytate-Record Co., Inc., 330 S.C. 562, 499 S.E.2d 822 (Ct. App. 1998).

^[25] While slander is generally spoken defamation, it may not only be made by word, but also by actions or conduct. See Lynch v. Toys "R" Us-Delaware, 375 S.C. 604, 654 S.E.2d 541 (Ct. App. 2007) (slander occurred when plaintiff was escorted, while handcuffed, out of store and into police car in full view of public); Tyler v. Macks Stores of South Carolina, Inc., 275 S.C. 456, 272 S.E.2d 633 (1980); Mains v. K-Mart Corp., 297 S.C. 142, 375 S.E.2d 311 (Ct. App. 1988) (words, conduct, or combination of them may communicate defamation); Cox v. Nat'l Loan & Exchange Bank, 138 S.C. 381, 136 S.E. 637 (1927).

^[26] Dauterman v. State-Record Co., 249 S.C. 512, 154 S.E.2d 919 (1967); Murphy v. News & Courier, 141 S.C. 51, 139 S.E. 189 (1927).

^[27] Capps v. Watts, 271 S.C. 276, 246 S.E.2d 606 (1978) (defendants words - referring to plaintiff as "paranoid sonofabitch" - on their face are merely ones of abuse and scurrility, but with surrounding circumstances may be susceptible of libelous construction); Dauterman v. State-Record Co., 249 S.C. 512, 154 S.E.2d 919 (1967).

^[28] Warner v. Rudnick, 280 S.C. 595, 313...