A. Defamation

• Library: South Carolina Damages (SCBar) (2009 Ed.)

A. Defamation

Defamation is an invasion of a person's interest in his good reputation. Thus, defamation consists of any statement about another person that has a natural and direct tendency to harm that person's reputation.¹ The statement may be in spoken form, in writing, or communicated through signals or actions, or it may consist of any combination of these different forms.² As a general rule, slander is a defamatory statement communicated orally through spoken words.³ Libel is defamation expressed in written form by a printed statement "or by signs, pictures, effigies, or the like."⁴

Libel may also consist of the publication of photographs.⁵ It is not necessary that a defamatory statement take the form of language that is explicitly slanderous; an insinuation is actionable "if it is false and malicious and its meaning is plain."⁶

1. Definitions and Distinctions

Perhaps because of its convoluted history,⁷ the law of defamation places undue significance on definitions and definitional categories, all of which have a direct bearing on damages. Application of the legal distinctions between defamation per se and per quod, actual and implied malice, general and special damages, and public figures versus private figures can have a profound impact on a plaintiff's ability to recover at all, as well as on the types of damages that a successful plaintiff may obtain. Moreover, because of the First Amendment concerns implicated by basing civil liability on an act of free speech, this area of law receives more rigorous appellate review than any other.

The common law distinction of defamation per se and defamation per quod, while antiquated and often confusing, determines the type of damages a plaintiff must prove to recover.⁸ In White v. Wilkerson,⁹ the South Carolina Supreme Court summarized the difference between defamation per se and defamation per quod: "If an innocent construction can fairly be made of the statement it cannot be defamatory per se."¹⁰ Thus, words that are not actionable on their face constitute defamation per quod and require pleading and proof of extrinsic circumstances to impart a defamatory meaning.¹¹

Whether alleged defamation is in the form of slander or libel also affects whether it is actionable per se or per quod. In order to constitute slander per se,¹² spoken words must impute the commission of a crime,¹³ unfitness for a trade or profession,¹⁴ adultery or want of chastity,¹⁵ or the contraction of a loathsome or contagious disease.¹⁶ By contrast, libel per se consists of any "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."¹⁷ Thus, slander per se is a much narrower, restricted category than libel per se. The significance of the distinction is that the law presumes malice and damages when defamation is actionable per se. Under the common law, therefore, damages need not be proved when the alleged defamation is actionable per se.¹⁸

"Malice" is an important concept in the law of defamation, and it too relates directly to the recovery of damages. Common law "actual malice" is satisfied when "the defendant was actuated by ill will in what he did, with the design to causelessly and wantonly injure the plaintiff; or that the statements were published with such recklessness as to show a conscious indifference toward plaintiffs rights."¹⁹ Implied malice (also called "malice in law," "legal malice," or "presumed malice") is a legal presumption which dispenses with the proof of common law actual malice when the publication is actionable per se.²⁰

As developed by the United States Supreme Court in New York Times Co. v. Sullivan²¹ and its progeny, the constitutional meaning of actual malice is completely different from the common law meaning. Whereas common law malice means ill will or conscious indifference toward the rights of the plaintiff, constitutional malice means knowledge of falsity or reckless disregard of the truth.²² Moreover, recklessness under the constitutional standard is measured not by whether a reasonably prudent man would have published or investigated further before publishing, but rather by evidence that the defendant actually had "serious doubts" as to the truth of the publication at the time it was published.²³ Thus, when the First Amendment requires a plaintiff to prove actual malice, he must "demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement."²⁴

Damages proximately caused by the defamation are a necessary element of the right to recover, but the law recognizes two types: general and special. If a defamatory statement is actionable per se, the law presumes that "general damages" are the natural and proximate result of the defamation and allows the plaintiff to recover without specific proof of damages.²⁵ Such presumed general damages include injury to reputation, mental suffering, hurt feelings, and "similar injuries, incapable of definite money valuation."²⁶

If the defamatory statement is not actionable per se, the plaintiff must plead and prove "special damages."²⁷ Special damages are a loss of money or some provable material injury to the "property, business, profession, or occupation" of the plaintiff that is capable of monetary quantification.²⁸ Special damages do not include hurt feelings, embarrassment, humiliation, or emotional distress.²⁹ Special damages must result from the injury to the reputation of the plaintiff that was caused by the defamatory statement.³⁰ For example, the courts have held that medical expenses incurred by the plaintiff to treat his wife for her humiliation and embarrassment do not constitute special damages.³¹

Whether the plaintiff is a public or private figure in the context of the alleged defamation can be of critical importance. A whole chapter could be written on the definition of "public figure" and specific examples of persons held to come within or fall outside of the definition. In essence, public figures include most public officials, candidates for public office, and individuals who

have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.³²

Thus, there are two types of public figures: (1) the person of "pervasive fame or notoriety," who is considered a public figure for all purposes, and (2) the person who "voluntarily injects himself or is drawn into a particular controversy and thereby becomes a public figure for a limited range of issues."³³ In either case, determining whether the plaintiff is a public figure is a question of law for the court.³⁴

2. Alleging Damages

Defamation is not actionable unless the defamatory statement has caused or has a natural and direct tendency to cause damage to the plaintiff's reputation.³⁵ In an action for defamation which is actionable per se, it is not necessary to allege special damages.³⁶ If the defamatory statement is not actionable per se, however, a plaintiff must both plead and prove special damages.³⁷ Even if the defamation is actionable per se, any special damages the plaintiff seeks to recover must be pleaded and proved.³⁸

3. Evidence and Burden of Proof

As a general rule, the evidentiary requirements and burden of proof, as well as the basic rules concerning the weight and sufficiency of evidence as to damages, are the same in a libel and slander action as in any other.³⁹ For a recovery of actual damages in a libel action by a private individual, the degree of proof is by a preponderance of the evidence.⁴⁰ However, the United States Supreme Court has imposed heightened requirements for certain types of damages when the circumstances of the action give rise to First Amendment protections.⁴¹ These constitutional decisions have significantly altered the common law landscape.

One of the most fundamental tenets of First Amendment jurisprudence is that a public-figure plaintiff must prove constitutional actual malice with clear and convincing evidence in order to recover any damages at all.⁴² Furthermore, an appellate court reviewing a trial court's actual malice determination must "independently examine the entire record to determine whether the evidence sufficiently supports a finding of actual malice."⁴³ The South Carolina Supreme Court has applied these principles rigorously.⁴⁴ Actual malice may be "established when reporters and publishers depart from responsible standards of investigation and print articles on the basis of an admittedly unreliable source, without further verification."⁴⁵ However, failure to investigate before publishing a defamatory statement does not constitute malice unless "there are obvious reasons to doubt the veracity of the statement or informant."⁴⁶

Constitutional protections do not apply only to defamation suits brought by public figures. A private-figure plaintiff, though not required to prove actual damages by "a degree of proof more demanding than by 'a preponderance of the evidence,'"⁴⁷ must prove entitlement to punitive damages with clear and convincing evidence of constitutional actual malice.⁴⁸ Likewise, while the common law rule is that general damages are presumed and need not be proved when the defamation is actionable per se,⁴⁹ a plaintiff must present clear and convincing evidence of constitutional malice in order to recover presumed damages in some circumstances.⁵⁰ In Erickson v. Jones Street Publishers, LLC,⁵¹ the South Carolina Supreme Court held explicitly that a private-figure plaintiff suing a media defendant...