Page 343 - Law and the Media

Law and the Media
21.2 Defamation

Freedom of speech and freedom of the press are uninhibited by reason of the First Amendment
to the Constitution. However, over the last 40 years the courts have attempted to provide
protection for those whose reputation has been damaged by defamatory speech.

It is generally considered to be more difficult for a plaintiff to issue proceedings for
defamation in the United States than it is in England. This is because a plaintiff in the United
States has a considerable number of legal hurdles to overcome in order to prove all elements
of the tort, particularly if the defamatory statement involves a ‘matter of public concern’.
Many defamation actions in the United States are determined at an early stage in the
proceedings by a finding of summary judgment in favour of the defendant or settle before
they reach trial.

Media organizations and journalists should be aware that there is no guarantee it is safe to
publish a story in England just because it did not attract a defamation lawsuit in the United
States.

21.2.1 Elements of the tort

The law of defamation in the United States is divided into two parts: the common law
elements and the Constitutional requirements. Where a defamatory statement involves a
private person and a private matter, the common law tort elements are applied. Where a
defamatory statement involves a ‘matter of public concern’, the plaintiff, whether a private
person or a public official or figure, must prove two additional Constitutional
requirements.

The elements of the common law tort of defamation are defamatory language:

Of or concerning the plaintiff
Which is published by the defendant to a third person, and
Which causes damage to the plaintiff’s reputation.

If the defamatory statement involves a ‘matter of public concern’, the Constitution requires
the plaintiff prove two additional elements:

Falsity of the statement, and
Fault on the part of the defendant.

Defamatory language
Defamatory language includes any words, pictures or other forms of direct or indirect remark
that tend adversely to affect the reputation of the plaintiff. Only a living person may be
defamed.
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