Just in case anyone in Hollywood is ever sued for defamation, here is a summary of the elements of the cause of action:
1. A Statement. As an obvious first element, there must be a statement, which can either be in writing (libel) or spoken (slander). Defamation in audio-visual works, such as TV or films, is treated as “written,” so it is treated as libel, even if the defamation is spoken.
2. Communicated. The statement must be communicated in some manner to one or more third parties. The number of third-parties may be relevant for damages, but even a comment to a friend can suffice. Certainly anything in an audio-visual work shown to the public or in a newspaper would count as communicated.
3. By the Defendant. The statement must be made by the defendant. Critically, it is no defense that the defendant merely repeated a statement by someone else, even with attribution. Thus, if John says, “Mary said [a defamatory statement] about Susan,” Susan can successfully sue John. Indeed, newspapers can be sued merely for printing advertisements that include defamatory statements. This approach permits plaintiffs to sue studios and broadcasters, not just the producers that created the defamatory content. However, under Section 230 of the Communications Decency Act, “interactive computer services,” such as most on-line social networks, are granted immunity from defamation claims for content posted by their users.
4. Concerning the Plaintiff. The statement must be taken by a reasonable person (applying an objective standard) to be about the plaintiff. This issue is often highly contested. Many plaintiff’s have sued and failed over films that were loosely based on events in their lives but did not use their names. For example, a defamation claim involving “The Wolf of Wall Street” failed because facts and names were changed, and there was a statement at the end of the film that the film was fictionalized. In contrast, a recent defamation case was allowed to proceed against Netflix
5. That Alleges Facts. The statement must allege facts, not mere opinion, although this line can often be blurry and there is a mountain of conflicting case law on this issue. It is not defamation to say, “In my opinion, John is a bad guy,” but it is defamation to say falsely, “In my opinion, John stole my wallet,” since the “opinion” asserts concrete facts. The facts may be stated by implication; for example, an article discussing how someone faced wrath for alleging domestic violence during a marriage clearly implies that the spouse at that time committed domestic violence.
6. That Are False. Truth is a defense to any defamation claim, so the plaintiff must prove that the statement is false, although a statement will not be actionable if it is substantially true, even if somewhat inaccurate. Even if the statement is literally true, it may be actionable under a related cause of action for “false light.” For example, a picture of an innocent person adjacent to an article about pedophiles would be actionable, since the adjacent picture implies that the person is a pedophile. Similarly, if one ex-spouse (Ms. X) accuses the other (Mr. Y) of domestic violence, and Mr. Y says, “No I didn’t,” that statement implies that Ms. X is lying, so Ms. X may sue for defamation. The outcome will, of course, depend on the truth.
7. That Harms the Reputation of the Plaintiff. The false statement must harm the reputation of the plaintiff by asserting false facts that a reasonable person would find offensive, sometimes expressed as exposing the plaintiff to “hatred, contempt, ridicule, or obloquy.” But one person’s insult is another’s compliment: For example, a soldier loosely portrayed in “The Hurt Locker” sued because he was offended by certain inaccuracies in the film, but the Ninth Circuit held that the overall portrayal was heroic, so his case was dismissed. Some cases have held that the plaintiff was “defamation proof” because he was a career criminal or the like, so his reputation could not be made any worse by what would otherwise be defamatory statements. For example, a defendant that accused a plaintiff of domestic violence might defend against a defamation claim by proving that the plaintiff was a known drug abuser, arguing that the plaintiff’s reputation could not be damaged.
8. That Are Made Intentionally, Negligently, or Recklessly. If the plaintiff is a private person, the plaintiff need only prove that the defendant made the statement either knowing its falsity or with negligence, such as by not using reasonable efforts to verify third-party information. If the plaintiff is a public figure (or becomes so due to association with a newsworthy event), then the plaintiff must show by “clear and convincing evidence” that the defendant made the statement either knowing its falsity or with reckless disregard to its accuracy – mere negligence is not enough. This higher standard is the so-called “actual malice” standard required under the First Amendment.
9. That Are Not Privileged. Finally, even otherwise blatantly defamatory statements are not actionable if they are subject to an absolute privilege, such as statements made in a court proceeding or on the floor of Congress in connection with pending legislation.
Oh, by the way, any recovery on a defamation claim is fully taxable, while the related attorney fees are generally not deductible, so even a successful plaintiff may be left with little to show after all the sturm and drang.