Chapter 16 DEFAMATION

• Jurisdiction: North Carolina

16 DEFAMATION

A. Definition

Defamation describes a communication that causes an individual to suffer contempt or ridicule, resulting in the individual suffering injury or damage.¹

At common law, the tort of defamation existed to redress and compensate individuals who suffered serious harm to their reputations due to the careless or malicious communications of others. A cause of action for defamation exists today to protect one's reputation from unjustified invasion of wrongful hurt. Defamatory statements are considered an egregious and intolerable wrong because they injure an individual's reputation, considered to be invaluable.²

B. Elements

In North Carolina, in order to recover for defamation, a plaintiff must allege:

(1) The defendant caused injury to the plaintiffs reputation;
(2) By making false, defamatory statements;
(3) Of or concerning the plaintiff; and
(4) Which were published to a third person.³

C. Elements Defined

1. False, Defamatory Statement of or Concerning Plaintiff

For defamatory words to be actionable, the words must refer to an ascertained or ascertainable individual, and that individual must be the plaintiff.⁴ In Arnold v. Sharpe, for example, the plaintiff viewed part of a handwritten document on her employer's desk that she suspected referred to her when, in fact, the portion of the document she read did not refer to her or to any employee in particular, and the Court accordingly held that no basis for a libel action existed.⁵ The term "defamation" describes a cause of action that encompasses the torts of libel and slander.⁶ Libel is defined as written defamation.⁷ That is, libel occurs when a defamatory publication is expressed in writing or print, or by signs or pictures.⁸ By contrast, slander describes an oral communication.⁹

2. Published to a Third Party

No basis for a defamation action exists unless there is a publication of the defamatory matter to a person or persons other than the plaintiff.¹⁰ A communication to the plaintiff, or to a person acting at the plaintiff's request, cannot form the basis for a libel or slander claim.¹¹ In Friel v. Angell Care, for example, the defendant made statements about the plaintiff after being contacted by a potential employer for the plaintiff. The North Carolina appeals court ruled that the plaintiff did not have a cause of action for defamation because the plaintiff had asked a potential employer, to whom the allegedly defamatory statement was made, to contact the defendant in order to obtain work references.¹² In slander cases, the plaintiff may prove publication by evidence that there were third parties within the same physical distance of the speaker as the plaintiff was.¹³ In Harris v. Temple, for example, the court considered the fact that the plaintiff heard the slanderous remarks spoken in a loud voice from a few feet away as evidence that others a similar distance from the speaker also heard, and considered this evidence as satisfying the publication requirement for slander.

3. Causing Injury to Plaintiff (Libel/Slander per se and per quod)

In order to ascertain whether the plaintiff can prove sufficient injury to bring a defamation claim, the issues of slander and libel per se and per quod must be analyzed. According to North Carolina law, libel may be divided into three classes: (1) publications that are obviously defamatory, termed "libel per se;" (2) publications that are susceptible of two reasonable interpretations, one of which is defamatory and the other is not;¹⁴ and (3) publications that are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances. This third type of libel is called libel per quod.¹⁵ With regard to the second type of publication, that is where a publication is susceptible of two interpretations, one of which is defamatory, the jury must determine whether the publication is defamatory and understood as defamatory by those who saw it.¹⁶ In contrast with libel per se actions where special damages are presumed, in actions where the publication is libelous per quod, the innuendo and special damages must be alleged and proved.¹⁷

Libel per se is a publication that, when considered alone and without innuendo or explanation, alleges that the plaintiff has (1) committed an infamous crime, (2) has an infectious disease, (3) tends to impeach the plaintiff in his trade or profession, or (4) otherwise subjects the plaintiff to contempt or disgrace.¹⁸ In order for a publication to be libelous per se, however, it is not essential that the words should involve an imputation of crime or otherwise impute the violation of some law, moral turpitude, or immoral conduct.¹⁹ The North Carolina appellate court has ruled, however, that statements referring to a plaintiff as "gay and bisexual" were not defamatory.²⁰ By contrast, false words stating that a law firm, in representing a candidate for public office, over-charged taxpayers could be defamatory per se.²¹

Slander per se, by contrast, is an oral communication to a third party where (1) an allegation is made that the plaintiff committed a crime involving moral turpitude; (2) an allegation is made that impeaches the plaintiff in his trade, business or profession; or (3) an imputation is made that plaintiff has a loathsome disease.²² When defamatory words are spoken with the intent that the words be reduced to writing, and the words are in fact written, then the publication is both libelous and slanderous.²³ "Moral turpitude," for purposes of stating a claim for slander per se, describes an act of inherent baseness in the private, social, or public duties owed to one's country, institutions or government.²⁴ Felony child abuse, for example, is a crime of moral turpitude.²⁵ To fall within the class of slander per se as concerns a person's trade or profession, the defamatory statement must do more than merely harm a person in business, but must: "(1) touch the plaintiff in [her] special trade or occupation, and (2) must contain an imputation necessarily hurtful in its effect on [her] business."²⁶

D. Defenses

1. Statute of Limitations

The statute of limitations for the tort of defamation is one year.²⁷ The statute begins to run from the date of publication, regardless of when the damage resulted or the identity of the author was discovered.²⁸ Note that under N.C.G.S. § 99-1, before an action is brought against a media defendant, the plaintiff must give the defendant at least five days' notice before commencing the action, specifying the article and the statements alleged to be false and defamatory.

2. Qualified Privileges

Even where a statement has been found to be actionable, a qualified privilege may exist under certain circumstances, such as where the communication in question (1) is made regarding a subject in which the defendant has an interest, or is made in reference to a situation in which the defendant has a right or a duty; (2) the communication is made to a person who has a corresponding interest, right or duty; (3) the communication is made on a privileged occasion; and (4) the communication is made in a manner and under circumstances fairly warranted by the occasion and duty, right, or interest.²⁹ When asserting a qualified privilege, an assumption exists that the communication was made in good faith and without malice.³⁰ To rebut this presumption, the plaintiff must show actual malice or excessive publication.³¹

3. Truth

A defamatory statement must be false in order to be actionable, and an admission of its truth is a complete defense to a defamation action.³² To establish a truth defense, the defendant would have to prove that the defamatory statement was a fair representation of the full truth.³³ For example, the North Carolina appeals court ruled that where comments regarding an employee's misuse of corporate resources were not false, they could not form the basis of a defamation action.³⁴ The defendant must plead truth as an affirmative defense in a defamation action.³⁵ The burden of proving falsity lies with the plaintiff.³⁶

4. Opinion

Language that can be classified as opinion has been considered by some courts to be protected speech under the First Amendment of the United States Constitution (See, e.g., Gertz v. Robert Welch).³⁷ In Renwick v. News & Observer,³⁸ however, the North Carolina Court of Appeals narrowly construed the Gertz holding, stating "purported statements of 'opinion' concerning the personal honesty, integrity, and conduct of individual have been sufficiently capable of being proven false to support libel [claims]."³⁹

5. Public Figure or Public Concern

In compliance with the standard set forth by the U.S. Supreme Court in New York Times v. Sullivan, a public figure may not prevail on a defamation claim unless the plaintiff proves that the defamatory statements were made with actual malice. In Boyce v. Isley, PLLC v. Cooper,⁴⁰ for example, a candidate for state attorney general qualified as a "public official" for purposes of a defamation action, and thus the plaintiff would have to prove actual malice in order to prevail. Similarly, discussions of matters of public concern have constitutional protection and cannot be actionable for defamation absent a showing that they contained provable false connotations.⁴¹ In Gaunt v. Pittaway, statements made by defendants, who were doctors, regarding a colleague's expertise as a fertility specialist were matters of public concern.⁴² Note that actual malice in accordance with the New York Times v. Sullivan standard means that the defendant published the defamatory material with knowledge of its falsity or with reckless disregard for the truth.⁴³

E. Damages

Under North Carolina case law, when a defamatory publication is libelous per se, malice and damage are presumed from the fact of publication and no proof is required as to any resulting injury. The law presumes that general damages actually, proximately, and necessarily result from...