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"That's Not True!" Defamation: Libel & Slander


Your reputation is one of the most important factors which can determine your personal success or the success of your business. The way in which customers and the general public see you or your brand can impact your business’s revenue and growth. False or misleading information about a company or its product can therefore be devastating. Experienced attorneys who are knowledgeable about defamation suits recognize that defamation law provides a means of recovering damages caused by false statements to the public. If you or your business has suffered damages because of defamatory statements, an experienced business and commercial litigation attorney can help you by identifying the offending statement, establishing its falsity, and pursuing the liable parties to obtain compensation for you.

Understanding Defamation: Libel & Slander In general, spoken defamatory statements are called “slander,” while written ones are called “libel.” Modern law, by and large, has disregarded the distinction between the two and simply refers to all defamatory statements as “defamation.” With the advent of the internet – particularly social media – the Pandora’s box of defamation has been opened, and an almost infinite array of places for defamatory speech to occur now exist, leading to phenomena like “cybersmearing” or “cyberbullying.”

In DeAngelis v. Hill, 180 N.J. 1 (2004), the Supreme Court of New Jersey elaborated on the policy goals of defamation law and laid out the elements of defamation, holding, “The law of defamation exists to achieve the proper balance between protecting reputation and protecting free speech… in addition to damages, the elements of a defamation claim are: (1) the assertion of a false and defamatory statement concerning another; (2) the unprivileged publication of that statement to a third party; and (3) fault amounting at least to negligence by the publisher… When the plaintiff is a public official, the plaintiff must establish that the defendant knowingly or with reckless disregard for the truth published false statements… Courts have referred to this standard as "actual malice." Id. at 12-13.

Public & Private Figures New Jersey follows the U.S. Supreme Court's decision in Rosenblatt v. Baer, 383 U.S. 75 (1966), in determining who is a public official for purposes of defamation law. Under this test, the public official designation applies to "those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Costello v. Ocean County Observer, 643 A.2d 1012, 1021 (N.J. 1994) (quoting Baer). Reading this test expansively, New Jersey courts have consistently held that police officers are public officials. Other examples of public officials include a former school district athletic director, a tax assessor, a building inspector, and an incumbent mayor.

Additionally, New Jersey courts recognize limited-purpose public figures. There is a two-part test for deciding who is a limited-purpose public figure. First, the defamatory statement must involve a public controversy, namely a real dispute with an outcome that “affects the general public or some segment of it.” See McDowell v. Paiewonsky, 769 F.2d 942, 948 (3d Cir. 1985). Second, the court must consider “the nature and extent of plaintiff's involvement in that controversy.” Id. The following individuals, among others, have been held to be limited-purpose public figures in New Jersey:

• A candidate for a condominium board of directors, because his candidacy thrust him into the public eye. Gulrajaney v. Petricha, 885 A.2d 496, 505 (N.J. Super. Ct. App. Div. 2005); • A lawyer representing the New Jersey School Boards Association, at a time when the association's insurance problems generated widespread and justifiable media attention. Schwartz v. Worrall Publ'ns, 610 A.2d 425, 428-29 (N.J. Super. Ct. App. Div. 1992); and • Land use applicants, because their construction project were fairly and reasonably the subject of public interest. LoBiondo v. Schwartz, 733 A.2d 516, 526 (N.J. Super. Ct. App. Div. 1999).

Actual Malice & Negligence When a private (i.e., non-public figure) plaintiff sues for defamation over statements of purely private concern (i.e., not related to a matter of legitimate public concern), New Jersey courts require the plaintiff to show that the defendant was at least negligent, as per the Hill case cited earlier. However, in cases involving matters of legitimate public concern, the plaintiff must prove that the defendant acted with actual malice – in other words, either knowing that the statements were false or recklessly disregarding their falsity. Public officials, all-purpose public figures, and limited-purpose public figures also must prove actual malice.

Privileges & Defenses New Jersey courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the fair report privilege, and the opinion and fair comment privileges.

In addition, New Jersey statutes recognize a privilege for cable television broadcasters who are complying with their obligations under any State or Federal law, regulation, or policy requiring that broadcast services be made available to members of the public. See N.J. Stat. Ann. § 48:5A-50.

There also is an important provision under Section 230 of the Communications Decency Act that may protect you if a third party – not you, your employee, or someone acting under your direction – posts something on your blog or website that is defamatory.

Perhaps most obviously, however, truth is an absolute defense to defamation. A statement that is true – no matter how damaging to the plaintiff’s reputation – cannot, by definition, be defamatory. This gives the defendant an incentive to prove the truth of the allegedly defamatory statement to both the court and the court of public opinion. While this should never dissuade a plaintiff from pursuing a meritorious claim, added public scrutiny is a factor to consider.

Closely related to the defense of truth is the “substantial truth” doctrine. Under the “substantial truth” doctrine, a statement is considered true (and thus protected from liability for defamation) if the “gist” or “sting” of the statement is true even if the statement is not completely accurate. If the “gist” of the statement is true, the court will disregard small errors in detail.

Many states have enacted statutes to protect individuals from allegedly frivolous defamation suits, known as “strategic lawsuits against public participation” (SLAPPs). Anti-SLAPP statutes provide mechanisms for a defendant to challenge the merits of a defamation case early in the litigation process. If a court rules that a case lacks merit, it could result in dismissal and, in some cases, sanctions against a plaintiff. These statutes could also be used to delay non-SLAPP defamation suits, so careful preparation of a claim is critical.

Fair Report Privilege The fair report privilege protects republishing “reports of defamatory statements made in judicial and other official proceedings,” in the interest that information from official proceedings be made available to the public. Costello v. Ocean County Observer, 643 A.2d 1012, 1018 (N.J. 1994). The report need not be “exact in every immaterial detail”, only “substantially correct.” However, a publisher who omits exculpatory language from the official report and thereby conveys an erroneous impression will lose the privilege.

For example, the privilege will cover the publication of official statements regarding police investigations, issued by police department heads and county prosecutors, unless the plaintiff can prove actual malice in the publication. See N.J. Stat. Ann. § 2A:43-1.

Statute of Limitations New Jersey has a shortened, one (1) year statute of limitations for defamation, as compared to the two-year statute of limitations for personal injury matters. See N.J.S.A. 2A:14-3.

New Jersey courts have adopted the single publication rule which states that the statute of limitations period begins to run when a defamatory statement is first published. Barres v. Holt, Rinehart & Winston, Inc., 378 A.2d 1148, 1151 (N.J. 1977). For example, if a magazine is distributed to thousands of newsstands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

Most states have applied the single publication rule to the Internet. Generally, the statute of limitation period begins when a defamatory statement is first made available online. Courts will likely find re-publication has started a new statute of limitations period only when online material is altered in a significant way. Therefore, be careful to consider this if you are thinking of substantially editing or rewriting old material. It is important to know the laws of your individual state in this regard.

In New Jersey, the New Jersey Superior Court has held that the single publication rule applies to Internet publications. See Churchill v. State, 876 A.2d 311, 319 (N.J. Super. Ct. App .Div. 2005). If other New Jersey courts follow the Churchill case, the statute of limitations should run from the date of first posting, unless more than merely technical changes are made to the website, triggering “republication.”

HAVE YOU BEEN DEFAMED? Defamation law is complex and highly nuanced. The success of a plaintiff’s defamation claim can often depend on how the case is presented and litigated. Having your case handled by a knowledgeable and skilled defamation attorney is highly recommended. If you have been defamed, reach out to the experienced attorneys at Drinkwater & Goldstein, LLP today to discuss the facts of your matter. Call (856) 753-5131 now for a free consult!

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