Similarities Between the Uber, United and Equifax Crises
But let’s back up. For PR counselors to understand exactly what is going on, some background on the law of defamation is in order.
Defamation is one of those terms that gets thrown around quite a bit in common parlance, with little understanding of the actual legal meaning. So let’s start with the basics. Not incidentally, with all the sensitive information we disseminate as PR professionals, it doesn’t hurt for all of us to understand defamation law on a more general basis (and tip for those plying their trade at PR firms: check those indemnity clauses!).
First, consider the difference between defamation, libel and slander, terms that are often thrown around interchangeably.
Defamation is a general term for libel and slander. Slander is spoken; libel is written (although libel includes, oddly enough, television and radio broadcasts, where, it is argued, a written transcript of the offending remarks can be made).
Defamation has historically been defined as the injury to reputation by words that tend to expose one to public hatred, shame, contempt or disgrace, or, to quote a seminal 1933 New York case against the New York Evening Journal, “to induce an evil opinion of one in the minds of right thinking persons and to deprive one of their confidence.” The loss of reputation need only be with a small section of the community‹or as famed tort scholar Dean William L. Prosser put it, a defamatory statement must “tend to prejudice the subject in the eyes of a substantial and respectable minority of the community.”
So that’s defamation. But the real question here is: when is it actionable (a “tort”) in the eyes of the law? For that, the statement must have four elements under New York law.
These elements are: (1) a false statement, (2) publication to a third party, (3) at the very least, negligence on the part of the person sending the message (but in the case of public figures, “actualmalice”), and (4) the statement must either cause “special” damages (i.e., verifiable economic damage) or constitute slander or libel per se.
In the PRSA case, thus far special damages have not been alleged, so we must be talking about libel perse. Libel per se is best described as a communication so obvious in its defamation that any fool wouldunderstand that there’s going to be damage.
Some words, for example, are defamatory by their plain meaning: “thief,” “cheat,” or “murderer” come to mind. Such direct disparagements are so obviously defaming by their plain meaning that there can be nodispute as to their effect. Under New York law, however, the communication is taken as a whole whenconsidering whether it is libelous per se. So it’s not necessarily the individual words themselves that matter if through the overall intent and meaning it is obvious that the communication would “tend to prejudice the subject in the eyes of a substantial and respectable minority of the community” then it’s libel per se.