What is defamation? Tough question, despite ample case law

LEGAL ENTERTAINMENT

In the age of technology, the public has become highly involved in other people's lives. Various types of technology give people the power to freely express, to a certain extent, their thoughts and opinions about people and events. Every person has to deal with a constant flow of others' opinions whether it's polite or not. There are numerous mediums where someone can "publish" speech such as social media, TV talk shows, or even just by talking out and about at a bar. In the entertainment world, this is a constant issue. With so much speech freely published, the question arises as to where the line is between defamation and protected speech. Even though defamation lawsuits are common among the entertainment industry, plaintiffs are finding out it's more complex to prove than it may initially seem.

Generally speaking, defamation occurs when someone publishes a false statement of fact about another person or entity that damages their reputation. If the person harmed is a public figure, the plaintiff must prove actual malice by showing knowledge of the falsity of the statement or a reckless disregard of the truth. A statement is protected by the First Amendment and not considered defamatory when the statement is true or someone's opinion.

If the false statement is perceived as a fact even though it's stated as an opinion, liability still may attach. Someone cannot avoid liability by merely calling the false statement an opinion. Courts look to whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact in light of the context of the statement. A statement of verifiable fact is a statement that conveys a provably false factual assertion such as saying someone committed a crime. Not only can the speaker be found liable for the damaging statements, but the publisher that participated in the publication of the statement may be liable for damages. In many instances this is the same person.

President Donald Trump was sued by Cheryl Jacobus for alleged defamatory statements that he tweeted during the presidential campaign. One tweet she claimed to be defamatory was his assertion that she "begged" for a job and when they said no she went "hostile." That was not the only tweet, a second tweet stated "turned down twice and she went hostile. Major loser, zero credibility." This case was dismissed last January. The judge explained that the tweet was a loose and hyperbolic statement, and it was impossible to conclude whether the statements induced a negative opinion or damaged her reputation. Jacobus appealed arguing that if the decision was upheld that twitter would become a "defamation free zone." Last month the appellate court upheld the dismissal and confirmed that the statements are too vague to be considered defamation and the immediate context in which the statements were made signal to a reader that the statement is opinion rather than fact.

HBO was slapped with a lawsuit over the June 18, 2017, broadcast of" Last Week Tonight with John Oliver." The plaintiffs, Robert Murray and his coal companies, alleged that statements made by John Oliver regarding the health and safety in the coal industry, a controversial mine collapse, and a labor dispute, put the companies in an unfair and damaging light. Defendants filed a motion to dismiss arguing that the plaintiffs failed to consider that accurate statements and satire on matters of public concern are protected under the First Amendment. The court has not made a decision on this motion as it had to first decide a removal motion from defendants attempting to remove the case to federal court. The hearing for the motion to dismiss was held on Wednesday. It seems the plaintiffs will not be able prevail. Oliver was quoting and presenting public government records demonstrating their accuracy and adding commentary which is known to be satirical.

On the flip side, the ex-manager of the well-known music trio TLC may have an opportunity to prove her side as the Georgia courts have denied a motion for summary judgment and the subsequent motion for reconsideration. Plaintiff Perri "Pebbles" Reid sued Viacom over a biopic that aired on VH-1 in 2013. She alleges the movie puts her in a damaging light by creating the impression that she was pressuring the group to sign contracts without review by lawyers, among 14 other scenes she claims as defamation. The denial of the motion was based on the possibility of malice supported by the potential bias in the story provided by the remaining members of the group. The court found that the evidence shows that the remaining members of TLC, Tionne and Chilli, were the sole source of information for the biopic putting their potential bias "facts" of the story into question. Even though the motions were denied twice, Viacom was able to lower the possible defamatory scenes that plaintiff will need to prove defamatory published by actual malice down from fifteen to six. The case is set to go forward to trial unless defendants decide to offer settlement.

Defamation lawsuits seem to continue to pop up in all situations not just on television or the internet. Shai LeBeouf is facing a lawsuit from a bartender in Los Angeles county for calling him a "racist" in a few disapproving ways. But again, LeBeouf filed an anti-SLAPP motion to dismiss in September 2017 arguing that the speech was protected by the First Amendment.

The range of defamation lawsuits is staggering. Even with a vast amount case law, plaintiffs still cannot tell the difference from defamation and free speech. The line of what is illegal and what is protected is not as fine as it seems it should be. People are allowed to know the truth and have the freedom to state their opinion, however, damaging false statements are forbidden; what falls under each category is still unknown to most.