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Barrister Bits - October 2014 Defamation Law - Part 2


Barrister Bits - October 2014
Defamation Law - Part 2

by Debra A. Newby

Dear Readers:  In lieu of my monthly Q & A  format, this column is Part Two of a three part series on defamation law.  This column is a community service intended to discuss general legal principles and does not create an attorney-client relationship. 

Last month we looked at a general overview of defamation law.  We learned there are two basic types of defamation--libel (written remarks) and slander (oral remarks).  Both are complicated expressions, as we have to balance the author’s or speaker’s right to free expression against the interests of the party who is hurt by the remarks.  Also, once we add the layer of “de-sensitivity” that seems to prevail in our civilized but arguably not quite evolved society, words get exchanged instantly, sometimes without consideration or thought.  The result:  Someone feels defamed.  The battle ensues, sometimes getting uglier and uglier, as each side over-strives to make their point…at any expense or cost, even to their fellow human being.  

Today, we will review what one needs to prove in a defamation claim, interwoven with some of the more common defenses.  As with any cause of action, there are “elements” that must be proven.  Generally, in California, the plaintiff (i.e. person bringing the lawsuit) must prove, by the preponderance of the evidence, the following :  1)  a publication; 2) of a statement of fact; 3) that is false; 4) defamatory; 5) unprivileged; and 6) that has a tendency to injure or cause damages.  (CA Civil Code sec. 44-46).

Let’s briefly look at each element.  First, a “publication”, which is not used in the ordinary sense of the word.  The remark need not be printed or published in a newspaper or magazine, but only disseminated in the public domain.  The remark can be posted on a blog or even announced at a PTA meeting.  The point is someone else needs to read or hear the remark.   Speaking of newspapers, though, a quick shout-out to Vesta, our Editor, is timely here.  She graciously offers a forum in this newspaper for all diverse voices to be heard; she welcomes and prints “competing” viewpoints…a mark of true character that should never be threatened or quelled, in my opinion. 

Secondly, the remark must address a statement of FACT that is false.  This is probably one of the most complicated areas of defamation law because we have to analyze fact versus opinion.  The statement must convey a provably false factual assertion.  Oftentimes, the courts will also look at the context of the statement.  For example, calling Jane Doe a name (for example a “slut”) in the heat of an exchange may not rise to a provable level of a fact.  But to remark that your married boss, Jane Doe, is having a steamy affair with her secretary, Michael, and she is funneling all the company assets into lavish gifts for Michael…that is more in the realm of a statement of a verifiable fact.

Next, the remark must be “defamatory”.   It must “sting”.  Hurt.  Also, the remark must not be legally privileged.  For example, in California you have the right to make a “fair and true” remark in a judicial, legislative, or other public official proceeding.  This is why our local Board of Supervisors at the beginning of each meeting have a “public comment” agenda item where just about anybody can get up and say anything, within the boundaries of common sense and good manners, hopefully.  

Lastly, the remark must cause damage.  This is another tricky area, as typically the injured party must prove the residual effects of the defamation.  Were profits lost?  Was a reputation ruined so that no one will hire, do business with, or socialize with the individual?  

Finally, for every claim there is a litany of defenses.  One common defense is “truth”, which is a complete defense, but also difficult to prove.  My Aunt Gwen used to quip there are three sides to the truth – yours, mine, and the truth.  Her southern outlook makes sense today (and she made a real mean tomato sandwich)! 

Next column we will give a quick snapshot of how the courts have ruled on certain cases.  Truth or Dare?  Defamation or Not?  Join us for fun!

Barrister Bits - Debra A. Newby, Attorney at Law

Debra A. Newby is a resident of Monte Rio and has practiced law for 32 years. She is a member of the California, Texas and Sonoma County Bar Associations.  She maintains an active law office in Santa Rosa and emphasizes personal injury law (bicycle/motorcycle/motor vehicle accidents, dog bites, trip and falls, etc.) and expungements (clearing criminal records).  Debra can be reached via email (, phone (707-526-7200), or fax (526-7202).