Libel is back in the news with actress Katie Holmes’ suit against Star Magazine. So, maybe it’s time for a quick refresher on what is libel and the showing needed for a libel claim.
Libel is a form of defamation. Libel is effected “by writing, printing, picture, effigy, or other fixed representation to the eye,” which exposes a person to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” CC §45. (Slander is the other form of defamation, which is effected by oral utterance.)
To be actionable, a defamatory statement must be a false assertion of fact.
How do you show that a statement is false? At the outset, defamatory statements are presumed to be false, with the defendant having the burden of proving that the alleged defamatory statement is in fact true. (This is turned upside down when the statement relates to a public figure or matter of public concern; in such cases, the First Amendment prohibits the common law presumption of falsity and puts the burden on the plaintiff to prove that the assertion is in fact false. Brown v Kelly Broad. Co. (1989) 48 C3d 711, 753, 257 CR 708.)
When a defendant is trying to overcome the presumption of falsity, truth is determined objectively, without regard to whether the defendant actually believed it to be true. A statement doesn’t need to be true in all respects; a defendant need only prove that the assertion is substantially true to justify the “gist” of the statement.
The next big question is whether a given publication can be reasonably interpreted as implying a provably false assertion of fact about the plaintiff; if the average reader would not understand the statement to be an assertion of fact, there is no action for defamation.
Finally, a “public figure” plaintiff seeking damages for a defamatory falsehood relating to a matter of public concern must also plead and prove that the defendant made the defamatory statement with “knowing falsity or reckless disregard for the truth.” Other plaintiffs need only show that the wrongful act done intentionally and without just cause or excuse.
In her $50 million lawsuit accusing Star magazine of libel for a cover story that falsely suggested she was a drug addict, actress Katie Holmes, a public figure, will need to show that the statements in the magazine were false assertions of fact and that the publishers acted with malice.
For coverage of all the elements of defamation and the recoverable damages, go to CEB’s California Tort Damages, chap 8. Defamation is also one of the highlighted topics in the CEB program Torts Practice: 26th Annual Recent Developments, available On Demand.
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