A. Definition

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

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

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Notes:

^[1] See generally Gressette & Norris, Defamation in South Carolina: A Primer on Damages and Defenses, 21 S. Carolina Lawyer 36 (2009); de Villiers, Substantial Truth in Defamation Law, 32 Am. J. Trial Advoc. 91 (2008)...