No Strict Liability for Defamation


A lawsuit for defamation has the following basic elements: (1) making a false statement (2) about a person (3) to others, and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. The person who made the statement has to have made it with a known or reckless disregard of the truth. This article discusses a matter related to the fifth element, the prohibition against strict liability.

Gertz v. Robert Welch, Inc.

In this landmark case, a newspaper publisher falsely claimed in its newspaper that a certain private individual was involved in a conspiracy. The trial court ruled in favor of the individual on the basis of strict liability. The United States Supreme Court reversed the judgment of the trial court and sent the case back to the trial court for further proceedings. The Supreme Court said that strict liability could not be imposed on the newspaper publisher, because “a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship.” The Supreme Court said that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” The Supreme Court indicated that presumed or punitive damages could not be awarded in a case of libel or slander without proof that the defendant made the defamatory statement with actual malice — a known or reckless disregard of the truth.

In a later case, Dun & Bradstreet v. Greenmoss Builders, Inc., the defendant falsely reported to a few subscribers that the plaintiff was insolvent. The Supreme Court said that if a defendant’s statement did not involve a matter of public concern, presumed or punitive damages could be awarded without a showing of actual malice.

By prohibiting a state from imposing strict liability for a defamatory statement, the Supreme Court in Gertz permitted defendants sued for defamation to seek a jury trial, then hope that the jury of his, her, or its peers, having the ability to believe or disbelieve in whole or part the testimony of any witness, would simply decide not to punish the defendant. A jury, which represents the conscience of society, can find that the plaintiff was unreasonable in bringing a defamation case, even though the defendant’s statements about the plaintiff were false. The jury can say, in effect, that we live in a society that permits uninhibited, robust, and wide-open debate, and that the plaintiff did not seriously cross that line, if at all.

Clear and Convincing Evidence

Added to the difficulty or proving defamation is the fact that some states require proof of one or more of the elements of defamation to be proven by clear and convincing evidence. It can be particularly difficult to prove actual malice by clear and convincing evidence. Your attorney can advise you as to the requirements in your state.