SC Lawyer, September 2009, #2. BASICS SERIES Defamation in South Carolina: A Primer on Damages and Defenses.

• Author: By Thomas P. Gressette Jr. and J. Patrick Norris

South Carolina Lawyer

2009.

SC Lawyer, September 2009, #2.

BASICS SERIES Defamation in South Carolina: A Primer on Damages and Defenses

South Carolina LawyerSeptember 2009BASICS SERIESDefamation in South Carolina: A Primer on Damages and DefensesBy Thomas P. Gressette Jr. and J. Patrick Norris Because technology has made it simple for almost anyone to publish information to millions with a few taps on a computer keyboard, allegations of defamation are becoming more and more commonplace. To properly advise clients, South Carolina practitioners need a working understanding of the law of defamation. Understanding the South Carolina tort of defamation requires an understanding of how more than a century of precedent has refined a cause of action that is unique in its precarious balance of elements, available damages and defenses. This primer is designed to provide practitioners with a framework to analyze a defamation claim under South Carolina law by illustrating the interplay between the tort's elements, recoverable damages and defenses.

I. The Tort of Defamation

A defamatory statement is a spoken, written or otherwise communicated statement about another person that has a natural and direct tendency to harm that person's reputation. Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609 (1978); Kendrick v. Citizens & S. Nat'l Bank, 266 S.C. 450, 454, 223 S.E.2d 866, 868 (1976). In order to prove defamation, a plaintiff in South Carolina must show: "(1) a false and defamatory statement was made; (2) the unprivileged statement was published to a third party; (3) the publisher was at fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm." Fleming v. Rose, 350 S.C. 488, 494, 567 S.E.2d 857, 860 (2002). Failure to prove any one of these elements is fatal to a defamation claim. See, e.g., Williams v. Lancaster County Sch. Dist., 369 S.C. 293, 304, 631 S.E.2d 286, 292-93 (Ct. App. 2006) (defamation claim failed as a matter of law where the plaintiffs could not establish that the defamatory statement was actually published to a third party).

The law of defamation is premised upon the notion that one's reputation is invaluable; thus, defamation actions stem directly from injury or damage to one's reputation. Williams, 369 S.C. at 302-03, 631 S.E.2d at 291-92. At the outset of our discussion, it should be noted that defamation is not so much concerned with hurt feelings-although that type of damage can play a role in a defamation claim-but more with how the victim's reputation is affected in the community. Murray v. Holnam, Inc., 344 S.C. 129, 138, 542 S.E.2d 743, 748 (Ct. App. 2001). A statement that damages or harms a person's reputation is a statement that lowers the person in the estimation of the community or leads others to refrain from associating or dealing with him. Id. at 139, 542 S.E.2d at 748 (citing Fleming v. Rose, 338 S.C. 524, 526 S.E.2d 732 (Ct. App. 2000), rev'd on other grounds, 350 S.C. 488, 567 S.E.2d 857(2002)).

The general rule is that spoken defamation is known as "slander," while written or printed defamation is known as "libel." Parrish v. Allison, 376 S.C. 308, 320, 656 S.E.2d 382, 388 (Ct. App. 2007) (citing Holtzscheiter v. Thomson Newspapers, Inc., 332 S.C. 502, 508, 506 S.E.2d 497, 501 (1998)). Slander can include not only words actually spoken, but also insinuations from conduct. See Lynch v. Toys "R" Us-Del., Inc., 375 S.C. 604, 654 S.E.2d 541 (Ct. App. 2007) (holding a jury could reasonably conclude that the defendant's act of requiring the plaintiff, a shoplifting suspect, to be handcuffed while walking through the store at a busy time was defamatory). More than 100 years ago the Supreme Court of South Carolina noted that libel could take the form of pictures or effigies. Hubbard v. Furman Univ., 76 S.C. 510, 511, 57 S.E. 478, 478 (1907) (citation omitted). More recently, the Court of Appeals recognized a video as libelous. See, e.g., Wilhoit v. WCSC, Inc.,

293 S.C. 34, 358 S.E.2d 397 (Ct. App. 1987) (affirming defamation verdict against broadcasting company and reporter based on the airing of film which depicted the plaintiff, a witness in a criminal trial, covering her face, simultaneously with a story about the criminal defendant's sentencing).

If a defamatory meaning of a statement is obvious on the face of the statement, that statement is defamatory per se.

Parrish v. Allison, 376 S.C. 308, 320, 656 S.E.2d 382, 389 (Ct. App. 2007). As the Supreme Court of South Carolina has explained, "[a]n example of defamation per se is 'A is a thief.'" Holtzscheiter, 332 S.C. at 509, 506 S.E.2d at 501. On the other hand, if the defamatory meaning is not clear unless the hearer knows the facts or circumstances surrounding the statement (i.e., the defamatory meaning is not evident in the statement itself), then the statement is defamatory per quod. Id. In such a case, the plaintiff must produce facts outside of the statement to prove defamation. Id.

After determining whether the statement is defamatory per se or per quod, the next issue is whether the statement is actionable per se. The question of whether the statement is actionable per se is a question of law for the court. Id. at 510, 506 S.E.2d at 501. This designation is of great importance in the realm of damages. If the statement is actionable per se, the law presumes that the "defendant acted with common law malice and that the plaintiff suffered general damages." Id. If the statement is not actionable per se, the plaintiff does not get the benefit of the presumption and instead must prove and plead "common law actual malice and special damages." Id. at 510, 506 S.E.2d at 501-02.

Slander is only actionable per se if it charges the defendant with one of the following five acts or characteristics: "(1) commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one's business or profession." Murray, 344 S.C. at 142, 542 S.E.2d at 749; see...