What is Defamation? New Jersey’s Defamation Definition
“Defamation” is the all-encompassing and overarching legal definition and term for the spoken, written publication of a false assertion of fact to a 3rd-party, which subsequently results in injury or damage to another party’s reputation. Common law legal jurisdictions such as the United States, Canada, and the United Kingdom categorize defamation as a civil wrong or injury, as such, defamation may commonly be referred to as the “tort of defamation” or “defamation of character.”
Due to being categorized as a civil wrong or injury in the United States, defamation plaintiffs may recover damages for the harm and injury suffered as a result of a defamatory and false statement or publication.
Furthermore, the tort of defamation may be divided into two fundamental types: slander and libel. Familiarizing yourself with their respective definitions is integral for lodging or commencing a defamation claim, as there may be substantially differing formalities and legal requirements for each.
- What is slander? Slander is a spoken statement or communication of false assertion of fact to a 3rd-party, which subsequently causes injury or damage to another party’s reputation.
- What is libel? Libel is a written or published (videos, photographs, other media) communication of a false assertion of fact to a 3rd-party, which subsequently causes injury or damage to another party’s reputation.
The general American public has typically tended to mislabel all defamation as “slander” and use it as a catch-all term for all defamatory communications. In reality, with the rise of the Internet and ability to disseminate information to all corners of the globe, libel has become the most popular form of defamation in 2018.
As noted above, it’s incredibly important to understand the core differences between libel and slander, and to look to the form in which a false assertion of fact (defamatory statement) was communicated and published. Failing to acquaint yourself with both libel and slander could lead to potentially filing your claim late or being barred altogether from commencing a defamation action.
For example, as slander deals with spoken communications of false fact, the nature of its evidence may be fleeting and difficult to prove in court, so most states generally require slander actions to be brought before libel actions.
To assist in your remembrance of the differences between libel and slander, think of libel as coming from the Latin word “libellus,” which means “booklet” or “small book.” So, if you see a false and defamatory statement published online or in text, think of it as being published in a libellus (small book).
Defamation and defamation of character may also be referred to as:
- Character assassination, and
Note that the tort of disparagement is an improper designation for defamation, as disparagement concerns itself with the damage associated with a business or person’s proprietary or financial rights, rather than damage to their reputation. Disparagement may also be more aptly named the “tort of commercial or business disparagement.” You can read up further on the fundamental differences between defamation and disparagement by checking out our all-encompassing blog post here.
In it, we tackle everything from the driving policies behind the tort of commercial and business disparagement, veggie libel laws, the required elements a plaintiff must prove when bringing a claim, and how to hold a party liable for the tort of commercial disparagement.
So, what do you call a person or entity which communicates and publishes a false assertion of fact about another person or entity?
- Slanderers: parties who verbally communicate and publish a false assertion of fact to a third party.
- Libelers: parties who publish a written (or media) statement of false fact to a third party.
- Defamers: the general name for parties who publish or communicate a false assertion of fact to a third party.
- Famacide: a rarely used and somewhat archaic term meaning “to destroy another person’s reputation.”
Now that we’ve tackled the core fundamentals and principles driving United States libel and slander laws, let’s take a look at how New Jersey defines the tort of defamation and defamation of character, along with the requisite elements defamation plaintiffs must prove in order to succeed in their defamation claim.
New Jersey Defamation Law’s Definition of Definition
So, how does New Jersey define defamation? New Jersey defamation law states, “Defamation imposes liability for publication of false statements that injure the reputation of another.” Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 765 (1989).
In order to succeed in a defamation claim under New Jersey defamation law, plaintiffs must prove the following four (4) elements:
- The assertion of a false and defamatory statement concerning another;
- The unprivileged publication of that statement to a third party;
- Fault amounting at least to negligence by the publisher;
- The Plaintiff was damaged by the statement. DeAngelis v. Hill, 180 N.J. 1 (2004).
Emphasis should be placed on the fact that statements must be “of and concerning” the plaintiff in order to be defamatory.
In order to help you better understand defamation in New Jersey, let’s take a look at two examples and cases where New Jersey courts helped better define their definition of defamation.
In this comprehensive guide to New Jersey defamation law, we’re going to walk you through all four required elements New Jersey defamation plaintiffs must prove in order to succeed in their defamation action.
Additionally, if you’re wondering how New Jersey’s definition of defamation compares to other U.S. states, head on over to our U.S. defamation and libel laws mega-page to check out our interactive United States defamation map.
Online Defamation Law Tip: Completely removing false and defamatory online posts and content sometimes isn’t always the best decision. Instead, suppressing it may be an effective and cheaper alternative to hiring a defamation attorney. In order to suppress negative and false Internet search results, you can: (1) start a blog and update it frequently, (2) make all your social media profiles public and start commenting on high-profile and trafficked pages, (3) interlink between various public online profiles, and (4) respond to malicious or defamatory comments directly.
Are you a resident of New Jersey and have been the victim of malicious and false attacks online? Reach out to the internet defamation attorneys of Minc Law today. At Minc Law, we’re here to fight for your reputation. It’s time to control your story and Internet presence.
In our tenure as nationally recognized defamation lawyers, we’ve secured the takedown and removal of over 25,000 pieces of defamatory online content, and have litigated in over 19 states and 3 countries. Just know, when working with the defamation removal lawyers of Minc Law, you’re in good hands. Furthermore, we have a nearly 100% online defamation removal and takedown rate – and all for a flat, reasonable fee.
As mentioned above, United States defamation law is a highly complicated and quickly evolving area of law, so if you’ve been defamed online, we strongly recommend you reach out to an experienced defamation attorney to assist in the exploration of your legal options.
Contact us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706 or by scheduling a meeting online.
It’s time to take back your reputation.
Now, let’s turn to New Jersey’s defamation pleading standard for libel and slander actions.
New Jersey’s Defamation Pleading Standard
Before we get into the specifics of New Jersey’s defamation pleading standard, let’s first understand what exactly pleadings are and why our judicial system requires them. And, we bet you’ve likely heard some of these basic legal terms thrown around before, whether from watching a popular legal drama on TV or when reading a crime or mystery book.
To start, what are pleadings?
Simply put, pleadings are the instigator of legal proceedings, and are the requisite formal written statements and documents which must be filed with a legal court. Specifically, pleadings outline a party’s:
- Case facts and assertions, and
As you can probably guess, pleadings are first commenced and set forth by the plaintiff – after all, why would a defendant choose to initiate a legal action against his or her self? After the initial documents set forth and proffered by the plaintiff, a defendant is then given an opportunity to respond or answer to the asserted claims and facts.
So, what are some examples of the most commonly filed pleadings?
- Complaint: the complaint is the first document set forth and proffered by the plaintiff, outlining their core claims, facts, arguments, and other accusations. Furthermore, a plaintiff’s complaint will contain what is known as a “prayer for relief,” or simply a statement of the damages sought.
- Answer: a defendant’s answer or response to the plaintiff’s initiated complaint, where they answer or deny all claims, facts, accusations, or arguments proffered by the plaintiff. An answer is also a defendant’s opportunity to raise any relevant defenses they may later rely upon in order to escape liability.
- Reply: sometimes a defendant’s answer will assert new facts, arguments, or claims, so naturally, a plaintiff will need an opportunity to “reply.” A reply is simply the plaintiff’s response to a defendant’s new arguments and answer.
- Counterclaim: a counterclaim is the defendant’s assertion of separate legal arguments or claims against the plaintiff, brought to typically offset the plaintiff’s initial complain and accusations.
With one of the most complex and clogged legal systems in the world, it’s incredibly important to understand that most U.S. states will significantly differ in their defamation formalities and pleading requirements.
For example, one state may require slander plaintiffs to initiate their defamation action within a specific and shortened period of time, while another may have a more relaxed statute of limitations for lodging a claim. Additionally, some states may require libel and slander plaintiffs to plead and argue their case with a certain level of specificity or with specific language, while other states may only require a libel or slander plaintiff to provide the gist of the defamatory statement(s) in question.
If you’re unsure of your respective state’s defamation pleading standards and other legal formalities, reach out to an experienced defamation attorney today!
What defamation pleading standard does the state of New Jersey follow?
Although a verbatim transcription of the language complained of is not required under New Jersey defamation law, a plaintiff must specify the defamatory words and the meaning he or she attaches to them. Miele v. Rosenblum, 254 N.J. Super. 8, 12–14 (App. Div. 1991).
Now, let’s take a look at several types of statements which United States’ libel and slander law (along with New Jersey defamation law) has declared so inherently defamatory and inflammatory, that a defamation plaintiff need not actually prove there was damage or injury suffered. Such statements are commonly referred to as “defamation per se,” “libel per se,” and “slander per se.”
What is Defamation Per Se? How Does New Jersey Define a ‘Per Se’ Statement?
Defamation per se is a legal principle which acknowledges certain statements as so inherently defamatory and inflammatory, that a plaintiff need not prove they suffered injury or damages as a result of the statement.
New Jersey classifies a statement as ‘defamatory per se’ if it falls into one of these four categories. Note that these four categories are interpreted broadly and are not all inclusive.
New Jersey’s recognition of the above four types of statements is in line with most other U.S. states and their definitions of defamation per se. Accompanying a defamatory per se statement is the presumption of damages, and it’s important to know that libel and slander per se will lead to ‘presumed damages’ for the plaintiff. We’ll address the various damages associated with defamatory statements in Section 5: New Jersey Defamation Damages.
Defamation Per Quod & Extrinsic Evidence
If a statement is not classified as defamatory per se, then it will likely fall under the classification of a “per quod” statement. Defamation per quod is the opposite of defamation per se, and will arise in cases where a plaintiff must provide extrinsic and supporting evidence to prove the defamatory nature of a statement(s) in question.
Statements that are defamatory per quod are statements that are not defamatory on their face and require extrinsic evidence to prove that they are defamatory. Lawrence v. Bauer Publishing & Printing Ltd., 89 N.J. 451, 459 (1982).
While defamation per se is associated with presumed damages, a defamation per quod action will require the plaintiff to prove “special damages.” Special damages will also be addressed in Section 5.
Defamation by Implication: It’s Not Always Obvious
Defamation is not always cut and dry, as defamation defendants don’t always explicitly communicate or publish a defamatory statement. Oftentimes, statements may be hidden or disguised in everyday language and speech. Defamation by implication will arise when defendants cloak or hide defamatory language in the contexts of ordinary speech.
While New Jersey has not specifically addressed defamation by implication in any notable cases, it is an important principle to keep in mind.
Online Defamation Law Tip: Commencing an online defamation action against a website or website administrator isn’t likely going to be your best bet of legal recourse, as most ISPs and websites are protected under a landmark piece of legislation – The Communications Decency Act. Oftentimes, it’s prudent to bring the defamation action against a malicious online poster. In order to assist you with your defamation claim, we strongly recommend you consult an experienced defamation removal attorney.
If you’re still unsure of what exactly is considered slander or libel, and have been the victim of offensive, false, and malicious online attacks and posts, reach out to the experienced and nationally recognized defamation removal attorneys of Minc Law today!
To schedule your free, initial no-obligation consultation, call us at (216) 373-7706 or schedule a meeting online.
We’re here to help you take back your reputation.
Important New Jersey Defamation Lawsuit Formalities & Requirements
It should be no surprise by now that the United States and New Jersey both have complex requirements and quirky nuances. Both boast numerous hurdles and hidden requirements, which might not otherwise be apparent to the untrained eye or person. In this section, we’re going to tackle the core defamation requirements and formalities to acquaint yourself with in New Jersey, along with several examples.
Specifically, we’re going to take you through:
- Whether New Jersey courts have personal jurisdiction over out-of-state defamation defendants,
- Where New Jersey libel and slander plaintiffs can sue defamation defendants,
- New Jersey’s statute of limitations for defamation claims, &
- Several fundamental and explanatory examples.
Do New Jersey Courts Have Jurisdiction Over Out-of-State Defamation Defendants?
Simply put, yes. However, there are several important requirements in order for them to have jurisdiction.
New Jersey courts have adopted the effects test from Calder v. Jones, 465 U.S. 783 (1984). The effects test set forth in Calder looks at where the effects of potentially tortious acts were intended or expected to be felt. Goldhaber v. Kohlenberg, 395 N.J. Super. 380 (Super. Ct. App. Div. 2007); See also, Blakey v. Cont’l Airlines, 164 N.J. 38 (2000).
For example, in a 2007 case, a New Jersey plaintiff, an owner of a cosmetic store, believed that three previous employees helped a news agency create a defamatory story about the plaintiff. The defendant’s motion to dismiss for lack of personal jurisdiction was ultimately granted because the plaintiff did not alleged facts that would lead to specific or general jurisdiction over the defendants. Merely believing that a defendant had contacts with the forum (New Jersey) was not enough to establish personal jurisdiction. 3Lab, Inc. v. Kim, No. 07-1056 (SRC), 2007 U.S. Dist. LEXIS 54903 (D.N.J. July 26, 2007).
Furthermore, New Jersey’s ‘Long Arm Statute’ “permits service on nonresident defendants subject only to ‘due process of law.’ R. 4:4-4(e). In other words, we will allow out-of-state service to the uttermost limits permitted by the United States Constitution.” Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971); See also, Ragonese v. Rosenfeld, 722 A.2d 991 (N.J. Sup. Ct. 1998).
If you’re unclear of whether New Jersey courts have personal jurisdiction over out-of-state defamation defendants, or you’ve been falsely accused or defamed online, we recommend you reach out to an experienced defamation attorney to explore your options. Consulting a nationally recognized and experienced online defamation attorney will not only save you time, but headache as well.
Now that we have an idea of whether New Jersey courts can exercise personal jurisdiction over out-of-state defamation defendants, let’s turn to the venue in which New Jersey defamation plaintiffs may sue them.
Where Can New Jersey Defamation Plaintiffs Sue?
Under New Jersey law, “The venue in all other actions (defamation included) in the Superior Court shall be laid in the county in which the cause of action arose, or in which any party to the action resides at the time of its commencement, or in which the summons was served on a nonresident defendant.” Rules Governing the Courts of New Jersey 4:3.
To recap, New Jersey defamation plaintiffs may sue a libel or slander plaintiff in:
- The county where the cause of action arose (ex. Where the libelous statement was printed),
- Any county where either the plaintiff or defendant reside at the time of its commencement, or
- In the county in which the summons was served on the nonresident defendant.
u.S. Libel Law Tip: If you’ve been the victim of libelous online attacks, make sure to document and screenshot everything. Doing so will increase your chances of formulating a sound and effective legal case against a defamation defendant, and will help refute any claims of tampering. Furthermore, we strongly suggest you have a trusted family member or friend take accompanying screenshots.
As we touched on in Section 1, it’s integral for all defamation plaintiffs to correctly identify the form in which a defamatory or false statement was communicated and published, as it could seriously affect one’s ability to commence a defamation action. Most notably, incorrectly identifying the form in which the defamation was conveyed will affect the statute of limitations, or when one’s claim begins to toll.
Let’s turn to New Jersey’s defamation of character statute of limitations and how it compares to other U.S. states’.
New Jersey’s Defamation Statute of Limitations
Before tackling New Jersey’s defamation statute of limitations, let’s first look at the core policies behind the existence of statutes of limitations. Simply put, a statute of limitations is a time limiting restraint and mechanism, placed on legal actions and one’s ability to bring them.
Statutes of limitations vary by crime and action, and will often prevent a plaintiff from bringing their action altogether if it is initiated and filed too late. And, in cases where the action wasn’t outright barred, it may lead to subsequent penalties or dismissals.
So, what’s the purpose behind a statute of limitations?
At their core, statutes of limitations strive to create a just and fair legal system, with the ultimate goal of enabling our present day judicial system to function like a well-oiled machine. Below are three key reasons why we have statutes of limitations in place:
- Reasonable diligence: As touched on above, the U.S. legal system is extremely clogged and bogged down with legal cases and frivolous actions, therefore it’s in their best interest to prevent persons from bringing their claim too late.
- Preservation of important evidence: Evidence can be fleeting or easily destroyed. Take for instance, slander actions, which hinge upon the communication of a spoken statement. Time is of the essence, and evidence surrounding such communication may not be easily collected or remembered in 3 years time. Also, it’s not unheard of for a person, business, or company to destroy or shred documents they’ve determined to be unnecessary and immaterial.
- Prevention of more “cruelty than justice”: At its most basic, statutes of limitations ultimately prevent more cruelty than justice, by allowing defendants to receive sufficient notice of an action. Doing so provides them with enough time to prepare their case.
So, what is the timeframe for New Jersey’s statute of limitations?
Under New Jersey defamation law, the statute of limitations for bringing both a libel and slander action is one (1) year. N.J.S.A. 2A:14-3.
Note that a claim for trade libel is subject to a general six (6) year statute of limitations and applicable to malicious interference claims. Patel v. Soriano, 369 N.J. Super. 192 (App. Div. 2004).
The discovery rule is not applicable to claims subject to the defamation statute of limitations in New Jersey. In other words, there are no fraudulent concealment protections for defamation. Lawrence v. Bauer Publishing & Printing Ltd., 78 N.J. 371 (1979).
In New Jersey, proceedings before administrative tribunals which are not authorized to decide defamation claims will not toll the one-year defamation statute of limitations. Fioriglio v. City of Atl. City, 963 F. Supp. 415 (D.N.J. 1997).
Affecting most states and their respective statutes of limitations is the ‘single publication rule,’ which we will tackle below.
Has New Jersey Adopted the Single Publication Rule?
The single publication rule is a time limiting mechanism and restraint on a plaintiff’s ability to bring multiple defamation actions for a single publication. Think about it, a defamation defendant shouldn’t be constantly at the mercy of having defamation actions brought against him or her due to one publication which can be litigated in a single instance.
Simply put, the single publication rule prevents a plaintiff from bringing a defamation action for subsequent publications of a defamatory statement. One action is all a defamation plaintiff needs.
New Jersey courts have adopted the single publication rule. Barres v. Holt, Rinehart v. Winston, Inc., 141 N.J. Super. 563, (App. Div. 1976), aff’d, 74 N.J. 461 (1977).
Under New Jersey defamation law, the single publication will apply to publications on the Internet. Churchill v. State of New Jersey, 378 N.J. Super. 471, (App. Div. 2005).
Small changes to a second posting of an article will not restart the statute of limitations in New Jersey. For example, an employer rating website published a potentially defamatory article and later republished it with slight alterations to resolve the dispute. Ultimately, the Court did not come to the conclusion about whether the changes made were substantial enough to constitute a republication and instead ruled that the post was protected by the fair report privilege (we’ll discuss fair report privilege in further detail in Section 4). Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236 (2018).
It bears repeating, even slight alterations to a text or publication will not toll a new statute of limitations. For a publication or communication of a defamation statement, there will be one action.
Online Defamation Law Fact: Online defamation is similar to a wildfire. The longer you let it sit and embed itself in Internet search results and webpages, the more damage it’s going to do. Stay proactive, and set up a Google Alerts account to monitor your online presence.
So, how does New Jersey’s defamation statute of limitations stack up to other U.S. states’?
Confronting libelous and malicious online attacks and posts can be a daunting task. Don’t go at it alone. From complex jurisdiction requirements to time-sensitive statutes of limitations, defamation law is a highly nuanced area of law and requires great attention to detail.
If you’re a resident of New Jersey, or any U.S. state, and have been the victim of libelous and false online attacks, contact the defamation removal lawyers of Minc Law now!
In our tenure as some of the most trusted defamation lawyers in the U.S., we’ve removed over 25,000 pieces of false and defamatory online content and litigated in over 19 states and 3 countries, all while boasting a nearly 100% online defamation removal and takedown rate. Furthermore, we offer online defamation removals and takedowns all for a flat, reasonable fee. When working with the nationally recognized defamation attorneys of Minc Law, rest assured you’re in good hands.
Contact us today to schedule your free, initial no-obligation defamation consultation by calling us at (216) 373-7706, or by scheduling a meeting online.
It’s time to put an end to the online abuse today!
Now, let’s turn to the different types of plaintiffs which are recognized under United States and New Jersey defamation law.
Public vs. Private Defamation Plaintiffs: Which One Are You?
Depending on a person’s status in the community and public’s eye, their rights and remedies under defamation law may vary. Understanding the difference between the numerous types of defamation plaintiffs in the United States is integral for formulating and crafting an effective libel or slander claim, as a person’s burden of proof they will be required to meet will likely differ depending on their status.
For example, United States defamation law generally recognizes two core types of defamation plaintiffs: public figures and private figures. Most states then break down these classifications even further.
In this section, we’re going to tackle the history behind the development of public and private plaintiffs and why we need to differentiate between the two in the context of defamation law. And, we think you’ll likely be surprised to find out which type of category you fall under.
So, let’s get started.
First, what’s the reason United States defamation law differentiates between public and private plaintiffs?
The crux of U.S. defamation law and the need to differentiate between both public and private plaintiffs/figures was first ruled on and addressed in the landmark legal case of New York Times Co. v. Sullivan. The Court in Sullivan held that when determining a defamation plaintiff’s rights and remedies under law, there should be a clear distinction between burdens of proof for both public and private plaintiffs.
But, what is the reason behind this?
The U.S. Supreme Court in Sullivan ruled that differentiating between both public and private defamation plaintiffs was essential for the furtherance of “uninhibited debate of public issues.” After all, if a particular figure has voluntarily availed and positioned themselves at the forefront of public debate and comment, the general public should be able to openly discuss issues surrounding them without fear of legal repercussion or censorship.
And, for persons who have not thrust themselves to the forefront of public debate, they should naturally be protected, meaning their burden of proof should be lesser than that of a public figure.
Below are the two differing legal burdens of proof both public and private figures must meet in order to succeed in their libel or slander action in the United States.
- Public Figures/Plaintiffs: Think of your Donald Trumps, David Beckhams, and Justin Biebers of the world. What do all of these parties have in common? They’ve either voluntarily or involuntarily thrust themselves to the forefront of public debate, comment, and criticism. Public figures and plaintiffs are the persons shaping our society’s social, political, legal, economic, and financial fabric. As public figures and plaintiffs have availed themselves to the public light, they are required to meet a stricter burden of proof when bringing a defamation claim. Specifically, they must prove a defamation defendant acted with actual malice or reckless disregard when publishing or communicating a defamatory statement.
- Private Figures/Plaintiffs: Most persons reading this will be classified as a private figure/plaintiff under general principles of United States defamation law, as you likely haven’t voluntarily or involuntarily availed yourself to extensive or heightened public comment, scrutiny, or criticism. Because of this, private figures and plaintiffs have a lower burden of proof they must meet in order to succeed in their libel or slander claims. For example, private plaintiffs are only required to prove a defamation defendant acted with ordinary negligence when communicating or publishing a defamatory statement. Ordinary negligence is the failure of a party to act as a reasonably prudent person would in similar situations and circumstances.
New Jersey’s classification of defamation plaintiffs closely follows the standards laid out by the United States Supreme Court in Gertz.
Specifically, “Gertz refrains from establishing specific criteria against which a plaintiff’s status can be measured to determine whether or not he is a public figure. Rather in instances where the plaintiff is not a public figure for all purposes, Gertz calls for a case-by-case examination ‘looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation,’ 418 U.S. at 352, 94 S. Ct. at 3013, 41 L.Ed.2d at 812. Important factors that led the Court to conclude that the Gertz plaintiff was not a public figure included plaintiff’s lack of any calculated relationship with the press and the fact that he neither ‘thrust himself into the vortex of this public issue, nor [engaged] the public’s attention in an attempt to influence its outcome.’”
Under the Gertz standard, public figure plaintiffs are required to meet different burdens of proof in order to establish a prima facie case for libel or slander. New Jersey, like most other states, recognizes four fundamental types of defamation plaintiffs and figures:
- Private Plaintiffs/Figures,
- Public Officials,
- All-Purpose Public Figures, &
- Limited-Purpose Public Figures.
Below is a comprehensive chart and table comparing all four defamation plaintiffs in New Jersey, along with several supporting cases and examples.
|New Jersey’s Four Classifications of Defamation Plaintiffs||Private Plaintiffs||Public Officials||All-Purpose Public Figures||Limited-Purpose Public Figures (LPPFs)|
|Definition||All plaintiffs and persons who do not fall within one of the three other categories. These are parties who have not availed themselves to public comment, criticism, or scrutiny.||The “public official” designation applies at the very least to those among the hierarchy of government, and employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs. Rosenblatt v. Baer, 383 U.S.75, 85, 86 S.Ct. 669, 675, 15 L.Ed.2d 597, 605 (1966).||Plaintiffs and persons who have voluntarily or involuntarily assumed a role of prominence in societal affairs, or who have risen to such pervasive power, that it’s in the general public’s best interest to discuss matters concerning them.||New Jersey courts have set forth a two-part inquiry for determining whether a defamation plaintiff is a limited-purpose public figure. The court must consider (1) whether the alleged defamation involves a public controversy, and (2) the nature and extent of the plaintiff’s involvement in that controversy. Furthermore, a public controversy is defined as “a real dispute, the outcome of which affects the general public or some segment of it.” Waldbaum v. Fairchild Publications, Inc., 201 U.S. App. D.C.|
|Burden of Proof||Ordinary Negligence||Actual Malice – this will generally apply to both public and private matters.||Actual Malice – this will typically apply in all cases of defamation.||Actual Malice – but typically only in respect to the particular controversy or issue they thrust themselves to the forefront of.|
|Examples||Everyday persons who do not engage in public affairs or controversies.||In New Jersey, courts have consistently found that police officers are public officials and thus have applied the actual-malice standard to police officers acting in their official capacities. Marchiano v. Sandman, 178 N.J.Super. 171, 174, 428 A.2d 541 (App.Div.). Specifically, a newspaper published allegations found in an unfiled complaint against a police lieutenant. The Court ultimately held that a police lieutenant was a public official because he was enforcing the law and in charge. Costello v. Ocean Cty. Observer, 136 N.J. 594, 643 A.2d 1012 (1994).||Think of celebrities, politicians, athletes, and other figures who are at the forefront of media, controversy, and comment.||An architect/civil engineer with a long history of working on public projects was found to be a limited-purpose public figure in New Jersey. McDowell v. Paiewonsky, 769 F.2d 942 (3d Cir. 1985).|
Defamation Removal Fact: Just remember, recognizing the form and name of the defamation at hand is extremely important for bringing a timely and effective claim. Slander actions must usually be brought before libel claims, so if you’ve been slandered, recognize that time may be ticking.
So, what actually is actual malice?
Actual Malice Test
“There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. [390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2dat267.]” Lawrence v. Bauer Publ’g & Printing, 89 N.J. 451, 463, 446 A.2d 469, 475 (1982).
Simply put, if a defendant has actual knowledge of a statements falsity, has serious doubts as to a publication’s truth, or acts with reckless disregard for the truth of the matter at hand, then actual malice will be found.
And in one concise statement of what burden of proof will apply, the fault standard for nonpublic (private) figures is negligence, while the standard for public figures, limited-purpose public figures, and public officials is actual malice. Feggans v. Billington, 291 N.J. Super. 382 (Super. Ct. App. Div. 1996).
Now, continuing on with the idea that defamation law should be differentiating between both public and private figures for the purpose of uninhibited debate and a truly democratic society, let’s take a look at issues of public and private concern. Issues of public and private concern both require plaintiffs to meet a specific burden of proof in order to succeed in their claim.
What Does New Jersey Consider Issues of Private & Public Concern?
Similar to the reasons why the U.S. Supreme Court ruled it was important to distinguish between both public and private defamation plaintiffs, the differentiation between public and private defamation issues is vital for the furtherance of democratic and uninhibited debate. Should U.S. courts fail to separate the two, our democratic institutions, bodies, and mechanisms would slowly erode and suffer, as the general public (and news media) would no longer be able to publicly discuss hot topic and contentious issues.
Additionally, private persons, who concern themselves with private issues, would ultimately have their personal life and affairs broadcasted to the rest of the world. Such could lead to unwanted attention, malicious attacks, and other nefarious consequences.
For example, just as statements concerning public figures require a plaintiff show a defendant acted with actual malice or reckless disregard, issues of public concern require plaintiffs to prove there was actual malice when disseminating or communicating a statement. And, for statements and issues of private concern, plaintiffs will have a lesser burden (typically ordinary negligence).
There are no notable New Jersey cases concerning issues of public or private concern which depart from the general principles set forth in Gertz.
Online Reputation Management Tip: If you are a business owner and want to make sure your reputation is protected online, we strongly suggest setting up an online reputation and brand management budget. Doing so is an extremely effective way to combat online defamation before it has time to spread and do damage. It’s a great way to understand how the general public (and your customers) view your brand and product, and an effective way to identify intellectual property infringers.
If you’ve been the victim of malicious and false online attacks and are unsure of whether the posted material is considered libel in your state, reach out to the experienced defamation attorneys of Minc Law today! We’ll help you identify whether you fall under the category of public or private plaintiff, and whether the statement at hand concerns an issue of public or private concern.
Now that you’re familiar with all the requisite elements for bringing a defamation of character claim in the state of New Jersey, along with the different types of defamation plaintiffs, let’s turn to the various defenses a defamation defendant may rely on and assert in order to skirt defamation liability.
Common Defenses to New Jersey Libel & Slander Lawsuits
In the wild world of defamation law in the United States and New Jersey, there are numerous defenses defendants may rely on in order to avoid defamation liability.
In this section, we’re going to take you through some of the most common defenses to libel and slander claims in New Jersey and the United States.
Below are just a few of the most commonly used defenses:
- Privilege (Absolute, Qualified, Statutory, Fair Report, Neutral Report),
- Libel-Proof Plaintiff Doctrine,
- Communications Decency Act, &
- Wire-Service Defense.
First, let’s tackle one of the most commonly used defenses in the United States – the defense of opinion.
Opinion: Is a Statement Verifiable as Fact?
At the very core of defamation is the notion of whether a statement is a false assertion of fact or not, meaning that if the contents of the statement may be independently proved false or true, then it will be considered fact (not opinion).
Statements which are not verifiable as fact, may however be protected under the defense of opinion and will not open up defendants to defamation liability in the United States and New Jersey.
Under New Jersey defamation of character law, statements of opinion are not actionable unless they imply defamatory facts on which the defendant bases his statement. Karnell v. Campbell, 206 N.J. Super. 81, 89 (App. Div. 1985).
For example, name calling in the context of a long-time war of words was not determined to be defamatory and considered opinion in New Jersey. As it was in the context of a radio show and was over an extended period of time. Specifically, in a heated comment made on the radio, the defendant called the plaintiff a “wife beater,” but it was said in the context of several other generic, non-defamatory insults. Wilson v. Grant, 297 N.J. Super. 128 (Super. Ct. App. Div. 1996).
Truth/Falsity Defense: Is the Crux of the Statement True or False?
As we’ve touched on above, for a statement to be actionable under New Jersey and United States defamation law, it must be independently verifiable as fact. If it isn’t, then it will likely give rise to the defense of opinion. It’s also important to understand that while a truthful statement may hurt your feelings and damage your ego, that doesn’t exactly mean you have a defamation of character action or claim on your hands.
Under New Jersey defamation law, truth will alway be an absolute defense to libel claims and cases. Furthermore, New Jersey has adopted the substantial truth doctrine, which recognizes as long as the statement is substantially true, or the gist of the statement is true, then the statement will be true.
Let’s take a look at an example of substantial truth in New Jersey.
- An online news website published an article about the plaintiffs, stating that they plead guilty to bugging or tampering with the office of a senator. Ultimately, a New Jersey court held that the gist of the article was substantially true in the larger context of the whole article. O’Keefe v. WDC Media, LLC, Civil Action No. 13-6530 (CCC), 2015 U.S. Dist. LEXIS 41127 (D.N.J. Mar. 30, 2015).
Simply put, if the “burn” or the “gist” of the statement is still felt and true, then a defendant will not be held liable for libel or slander under the substantial truth doctrine.
Legal Privilege: What Types of Statements Are Legally Privileged in New Jersey?
At its core, legal privilege refers to a person’s legal right to communicate, publish, or speak a specific type of statement, to a specific audience, at a specific time. Think of it as an enjoyment or entitlement to publish statements, even if the contents of the statement is defamatory.
It shouldn’t be a surprise by now that a common theme in United States defamation law is the promotion of uninhibited debate and an openly democratic and informed society. Privilege attests to the very core of these principles, as it is typically granted in our most fundamental and essential decision making processes (financial, social, legislative, political, etc…). Without it, our laws, policies, and regulations would fail to materialize and modernize with societal demands, and would not be as robust and comprehensive as they are now. Privilege is the heart which allows our decision making processes to beat and grow.
In this section, we’re going to take you through the most common legal privileges relied on by libel and slander defendants in the United States and New Jersey. Below are just some of the most commonly relied upon legal privileges in defamation law:
- Fair Report
- Neutral Report
Absolute Privilege: The Apex Form of Legal Privilege
Absolute privilege is at the top of the privilege food-chain – it is the apex form of legal privilege granted to speakers and publishers of defamatory statements. Specifically, absolute privilege refers to a person’s absolute or unconditional legal right, entitlement, or joy to publish or communicate a statement at a certain time, even if the contents of which are defamatory.
Due to the comprehensive nature of absolute privilege, it even extends to statements which are communicated and published with actual malice or reckless disregard.
What are the most common situations where absolute privilege is granted?
As it is the apex form of privilege, absolute privilege is generally granted to persons working at the core of our decision making processes, such as those in legislative, judicial, administrative, or other official proceedings. Think about it, in the interest of drafting and formulating the most comprehensive laws possible, a legislator or judge should be able to speak freely. Doing so will allow them to hit upon all relevant pros and cons of a law or policy. Both sides of the coin must be entertained.
Below are 11 explanatory examples of situations where absolute privilege is granted in New Jersey.
- Judicial proceedings: Defamatory statements made in the course of judicial proceedings, or that are related to judicial proceedings, are absolutely privileged in New Jersey. Hawkins v. Harris, 141 N.J. 207, 661 A.2d 284 (1995). New Jersey expanded the litigation privilege to make it very broad, and has included a pre-litigation demand letter by an attorney to be protected under absolute litigation privilege. However, extra-judicial statements by an attorney in anticipation of a client’s press conference were not protected by the absolute litigation privilege in Williams v. Kenney, 379 N.J. Super. 118, 877 A.2d 279 (App. Div.).
- Quasi-judicial proceedings: Certain statements made in the course of quasi-judicial administrative proceedings are absolutely privileged in the state of New Jersey. J.D. Constr. Corp. v. Isaacs, 51 N.J. 263, 239 A.2d 657 (1968).
- Legislators: Statements made by state legislators while acting within the scope of their authority will be absolutely privileged in N.J.. N.J. Const. Art. 4 § 4, ¶ 9, Cole v. Richards, 108 N.J.L. 356, 158 Atl. 466 (E.&A. 1932).
- Arbitration proceedings: Communications made in ethics or fee arbitration proceedings against lawyers are absolutely privileged in New Jersey. R. 1:20-11(b), In re Hearing on Immunity For Ethics Complaints, 96 N.J. 669, 477 A.2d 339 (1984); Lands v. Baseman, 200 N.J. Super. 247, 491 A.2d 47 (App. Div. 1985).
- Child abuse: Statements of suspected child abuse contained in a report to a state agency are absolutely privileged under New Jersey law. F.A. by P.A. v. W.J.F., 280 N.J. Super. 570, 656 A.2d 43 (App. Div. 1995); Rubinstein v. Baron, 219 N.J. Super. 129, 521 A.2d 867 (Law Div. 1987).
- Zoning board: Pertinent statements by objectors before a zoning board were determined to be absolutely privileged in the state of New Jersey. Hill Homeowners Ass’n v. Zoning Bd. of Adj. of Passaic, 129 N.J. Super. 170, 179, 322 A.2d 501 (Law Div. 1974), aff’d, 134 N.J. Super. 107 A2d (App. Div. 1975).
- Rent control: Statements filed with rent control boards are absolutely privileged in N.J.. Fenning v. S.G. Holding Corp., 47 N.J. Super. 110, 119, 135 A.2d 346 (App. Div. 1957).
- Insurance fraud: An insurer for a complaint filed with the Department of Banking and Insurance accusing the insured of fraud are absolutely privileged. Yourman v. People’s Security Life Ins. Co., 992 F. Supp. 696 (D.N.J. 1998).
- Settlement negotiations: Statements made during settlement negotiations are absolutely privileged in New Jersey. Dello Russo v. Nagel, 358 N.J. Super. 254, 817 A.2d 426 (App. Div. 2003).
- Tort Claims Act: The immunity of a public official acting in good faith or in instituting criminal proceedings from liability for defamation under the Tort Claims Act is lost if he is shown by clear and convincing evidence to have acted with actual malice. Jobes v. Evangelista, 369 N.J. Super 384, 849 A.2d 186 (App. Div.).
- Banking regulation violations: Letters from business revilas to federal regulators accusing parties of a violation of banking regulations were considered immune from a defamation action on the grounds of the Noerr – Pennington doctrine. Caixa Geral De Depositos, S.A. v. Rodrigues, No. 03-746 (MLC), 2005 U.S. Dist. LEXIS 24339 (D.N.J. June 29, 2005).
Let’s turn to absolute privilege’s less comprehensive and far-reaching cousin, qualified privilege.
Qualified Privilege: Absolute Privilege’s Less Comprehensive Cousin
Qualified privilege is the younger sibling or first cousin of absolute privilege, as it is not as comprehensive, and attaches in significantly fewer instances and situations. It may also be referred to as “Common Interest Privilege,” and refers to a party’s legal right, entitlement, or joy to publish or communicate a specific statement to a certain audience. Most of the time, the audience hearing such statement must have a reciprocal interest in hearing it.
While absolute privilege even protects statements made with actual malice or reckless disregard, qualified privilege does not. Furthermore, qualified privilege is typically granted to persons in positions of authority and trust who often have a social, legal, or moral duty to communicate a specific type of statement.
Under New Jersey law, qualified privilege may be overcome by a clear and convincing showing of actual malice. Burke v. Deiner, 97 N.J. 465, 479 A.2d 393 (1984). Specifically, in Burke, the New Jersey Supreme Court rejected the common-law malice standard for defeasance of the public officer privilege in favor of the New York Times standard. See also Rogozinski v. Air Stream by Angell, 152 N.J. Super. 133, 377 A.2d 807 (Law Div. 1977).
Let’s take a look at three important examples of qualified privilege in the state of New Jersey.
- The fair comment privilege was reevaluated, extended, and strengthened by the New Jersey Supreme Court in Dairy Stores Inc. v. Sentinel Publishing Co., 104 N.J. 125, 516 A.2d 220, 13 Media L. Rep. 1594 (1986), where they ultimately held that the need for the free flow of information and commentary on matters of legitimate public concern required the extension of the fair comment privilege, beyond statements of opinion, to include statements of fact and that the defense could only be overcome by proof of actual malice.
- While the allegations contained in a filed complaint are absolutely privileged, an attorney repeating the contents of a defamatory complaint to the press is protected only by the same qualified privilege extended to others who publish the contents of a filed complaint. Cappello v. Scott, 274 N.J. Super. 282, 644 A.2d 102 (Super. Ct. App. Div. 1994).
- Qualified privilege exists when legitimate public or private interest underlying publication outweighs interests of an individual. Abella v. Barringer Resources, Inc., 260 N.J. Super. 92, 94, 615 A.2d 288 (Ch. Div. 1992).
What is Statutory Privilege?
Deriving its name from the word “statute,” statutory privilege is as its name implies, privilege codified and prescribed by statute . Simply put, statutory privilege is a set of already drafted laws acknowledging certain situations where privilege will be granted.
Let’s take a look at 16 situations where privilege is codified in New Jersey.
- Investigations: Publications in a newspaper of official statements issued by police department heads and county prosecutors in investigations in progress, or completed by them, which are accepted in good faith by the publisher are privileged in New Jersey. (N.J.S.A. 2A:43-1).
- Public office: Statements made by legally qualified candidates for public office on television or radio broadcasts are privileged under New Jersey law. (N.J.S.A. 2A:43-3).
- Child abuse: Reports of suspected child abuse are privileged under New Jersey statute. (N.J.S.A. 9:6-8.8., 9:6-8.10a and 9:6-8.13).
- Insurance fraud: Reports filed in good faith and without malice with the Department of Insurance pursuant to the Insurance Fraud Prevention Act are privileged. (N.J.S.A. 17:33A-9).
- Insurance risks: Good faith statements by insurance agency personnel in reports or communications concerning insurance risks are protected by statute in New Jersey. (N.J.S.A. 17:37A-14).
- Health care facility abuse: Reports of abuse or exploitation of residents of residential healthcare facilities will be privileged under New Jersey law. (N.J.S.A. 30:1A-3).
- Public access: Broadcasts by cable television companies under state or federal law mandating public access are privileged in New Jersey. (N.J.S.A. 48:5A-50).
- Censorship: Broadcasts of statements by candidates for public office pursuant to federal law forbidding censorship will be privileged under New Jersey statute. (N.J.S.A. 2A:43-3).
- State Commission of Investigation: Statements by members or employees of the State Commission of Investigation which are relevant to proceedings or investigations are privileged in New Jersey. (N.J.S.A. 52:9M-15b).
- Elderly abuse: Reports of abuse of the institutionalized elderly are privileged under New Jersey law. (N.J.S.A. 52:27G-7.1e).
- New Jersey Tort Claims Act: Under the New Jersey Tort Claims Act, N.J.S.A. 59:2-3 et seq., especially N.J.S.A. 59:2-10, a public entity is not liable for the acts of public employees constituting actual malice or willful misconduct, including defamation, absent specific legislative authority. Seal Tite Corp. v. Bressi, 312 N.J. Super. 532, 712 A.2d 262, (App. Div.), certif. denied, 156 N.J. 411 (1998).
- Public officials: Note that the immunity of a public official acting in good faith or in instituting criminal proceedings from liability for defamation under the Tort Claims Act is lost if he is shown by clear and convincing evidence to have acted with actual malice. Jobes v. Evangilsta, 369 N.J. Super 384, 849 A2d. 186 (App. Div.), certif. denied, 180 N.J. 457, 852 A.2d 159 (2004). See Pitts v. Newark Bd. of Ed., 337 N.J. Super 331, 338-339, 766 A.2d 1206 (App. Div. 2001).
- Credit reporting: Statements about a consumer by a credit reporting agency are privileged under 15 U.S.C. §1681h (e) except for “false information furnished with malice or willful intent to injure such consumer.” Campbell v. Chase Manhattan Bank, USA, N.A., 2005 U.S. Dist. LEXIS 43026 (D.N.J. Aug. 9, 2005).
- Legislative committee: Statements by a witness before a legislative committee are absolutely privileged in the state of New Jersey. Hagaman v. Angel, 2005 WL 1390263 (Law Div. 2005). For example, the host of a community bulletin board website was ruled to be immune from liability for defamatory statements posted by others, pursuant to the Communications Decency Act, 47 U.S.C.A. & 230 (c) (i). Donato v. Moldow, 374 N.J. Super. 475, 865 A.2d 711 (App. Div. 2005).
- Attorney ethics matters: Grievants in attorney ethics matters are absolutely immune from suit for filing an ethics complaint or making statements within the context of subsequent disciplinary proceedings in New Jersey. R. 1:20-9. However, grievants are not immune for statements made outside the proceedings or to the media. R.M v. Supreme Court, 185 N.J. 208, 883 A.2d 369 (2005).
- Physician misconduct: A person who in good faith and without malice provides information relating to misconduct by a physician to the State Board of Medical Examiners in New Jersey is immunized under N.J.S.A 45-19.1 from liability for civil damages. Feit v. Horizon Blue Cross and Blue Shield of New Jersey, 385 N.J. Super. 470, 897 A.2d 1075 (App. Div. 2006).
Fair Report Privilege: Protecting Fair & Accurate Reports of Official Documents
Established in order to protect organizations and persons who in good faith rely on official reports, documents, and proceedings, and later publish them, fair report privilege is at the heart of our democratic and thriving media. Think about it, without the safeguard of fair report privilege put in place, how else would the public be alerted and notified of important documents, policies, and decisions which are ultimately dictating their very lives?
Simply put, fair report privilege exists in order to create trust in our government and administrative bodies. After all, if you can’t trust a government report or document, and are punished for relying on it, then what type of democratic society would that be?
New Jersey’s fair report privilege protects a complete, fair, and accurate report of an official document. Salzano v. North Jersey Media Group, Inc., 201 N.J. 500, 993 A.2d 778 (2010), cert. denied, 131 S. Ct. 1045, 178 L. Ed. 2d 864 (2011).
Neutral Reportage: Protecting the Republication of Defamatory Statements
Most commonly referred to as “neutral report privilege,” neutral reportage is a common law defense and privilege which protects persons or organizations who republish unproven and unverified (essentially, false), facts and accusations concerning public figures and persons.
Neutral reportage is a limited exception to the hardline rule, which imposes liability on persons who repeat or republish defamatory and false statements. Under the rule of republication, any person who republishes or repeats a defamatory or false statement will be held as guilty as the original publisher or speaker.
New Jersey has not ruled on any notable cases concerning the privilege of neutral reportage.
Libel Fact: The U.S. Supreme Court has outlawed strict liability for libel claims and prohibited libel claims based on statements that are so utterly and ridiculous false.
|Type||Absolute||Qualified||Statutory||Fair Report||Neutral Reportage|
|Definition||The apex form of privilege enabling parties to publish or communicate a defamatory statement, at a specific time, and to a specific audience.||A less comprehensive form of privilege enabling persons to communicate or publish a defamatory statement, to a specific audience, at a specific time. Generally, the person communicating or publishing the statement is in a position of trust or authority, and the audience has a reciprocal interest in hearing such statement.||Privilege prescribed for and codified by law, with outlined penalties and parameters of what constitutes defamation.||Privilege immunizing persons or organizations who produce or publish a complete, fair, and accurate report of an official document.||The legal right for persons and organizations to republish defamatory and false accusations lodged by public persons and officials at one another.|
|Can it be defeated?||No – even if the statement is published or communicated with actual malice.||Yes – if the statement is published or communicated with actual malice.||Yes – oftentimes if a statement is published or communicated with actual malice, then the speaker or publisher will lose immunity. Note that in certain cases, it must be shown by clear and convincing evidence the speaker or publisher acted with actual malice.||Yes – fair report privilege will typically be lost in cases where persons or organizations published the report in bad faith.||N/A|
|Examples||A few examples of absolute privilege include: (1) defamatory statements made in the course of judicial and quasi-judicial proceedings, (2) Statements made by legislators while acting within the scope of their authority, and (3) Communications made in fee or ethics arbitration proceedings against lawyers. For a complete list, please see above.||A few examples of qualified privilege in New Jersey include: (1) when the legitimate private or public interest underlying a publication outweighs the interests of an individual, (2) when an attorney repeats the contents of a defamatory complaint to the press, and (3) where there is a need for the free flow of information and commentary on matters of legitimate public concern.||Several examples of statutory privilege in New Jersey include: (1) statements by legally qualified candidates for public office on radio broadcasts or television, (2) reports of suspected child abuse, and (3) good faith statements by insurance agency personnel in communications or reports concerning insurance risks.||Think of a fair and official report or document published by a government, judicial, or other administrative body. Keep in mind that the report must be complete, fair and accurate.||There are no notable examples of neutral reportage in the state of New Jersey.|
Now, let’s finish off some of the most common defenses used in the United States and New Jersey by taking a look at three final defenses.
Libel Proof Plaintiff Doctrine: A Reputation That Cannot Be Harmed
Sometimes there are persons with already such poor and reviled reputations in their community that the publication or communication of a defamatory statement doesn’t even cause any harm. Such plaintiff is referred to as the “libel-proof plaintiff,” as the are immune from libel and other defamation.
The most common libel-proof plaintiffs you’ll encounter in the U.S. legal system are persons who are well-known in their community (and it’s often a small community), and are habitual criminals or drug dealers.
New Jersey has not ruled on any noteworthy cases concerning libel-proof plaintiffs.
Communications Decency Act: A Landmark Piece of Internet Legislation
The Communications Decency Act (CDA) is a landmark piece of Internet legislation passed, which immunizes Internet Service Providers (ISPs) and websites in cases where defamatory and malicious content is posted on their website.
Simply put, as long as the website or ISP where the defamatory and false information was posted was not the actual creator or curator of the content, then they will not be held liable for the statements and communications (even if defamatory and malicious).
For example, in New Jersey, a defendant owned and operated an Internet bulletin board. And, the plaintiffs in the case suspected that the defendant had posted defamatory comments about them on his own bulletin board under a pseudonym. Ultimately, the court held that the good faith provision of the CDA did not diminish the protections granted to publishers. Furthermore, the court held that website operators can post on their own website and be considered the author of the things they post, but not the things that others person.
Because the Court found that the plaintiff’s case would not survive a motion to dismiss, they were not granted discovery of the identities of the anonymous posters. Donato v. Moldow, 374 N.J. Super. 475, 865 A.2d 711 (App. Div. 2005).
Wire Service Defense: Rarely Used, But Still Relevant
Although rarely used in today’s day and age, the wire service defense is still relevant to media and news organizations who republish information and communications received via “reputable wire service.”
Should a news media organization rely on a wire service communication in good faith and later republish the information received, then they will not be held liable for defamation.
If you’re unsure of the various defenses to your libel or slander claim (or if you even have a defamation claim at all), reach out to the defamation lawyers of Minc Law today!
At Minc Law, we’ve removed over 25,000 pieces of defamatory and false online content, and have litigated in over 19 states and 3 countries. We secure swift and seamless removals, and all for a flat, reasonable fee.
Contact us today to schedule your free, initial no-obligation consultation by calling us at (216) 373-7706, or by filling out our contact form online.
New Jersey Defamation Damages
New Jersey’s fourth and final element required to be proved by libel and slander plaintiffs in their defamation claim is that there was “damages.” Specifically, New Jersey’s fourth element requires the plaintiff to have been damaged by the defamatory statement(s) in question.
So, what are damages?
Damages are awards granted to defamation plaintiffs in order to compensate or reimburse them for the damage, harm, or injury suffered as a result of a defamatory statement. Typically, damages are quantified in monetary sum, and may be divided into four fundamental types:
- Presumed Damages,
- Special Damages,
- Actual Damages, &
- Punitive Damages.
Presumed Damages & Per Se Defamatory Statements
As noted in Section 1, presumed damages go hand in hand with defamatory per se statements – statements which are so inflammatory and inherently defamatory that a plaintiff need not prove they actually suffered damage. As some statements are so inherently defamatory and inflammatory, damages will be presumed, and thus the plaintiff will not be required to show there was damage or harm suffered.
In New Jersey, presumed damages may also be referred to as “nominal damages,” and their use as a remedy is typically very limited. For example, “If a plaintiff does not proffer evidence of actual damage to reputation, he may not recover for compensatory damages, but may survive summary judgment ‘to obtain nominal damages, thus vindicating his good name.’” W.J.A. v. D.A., 210 N.J. 229, 233 (2012).
So, which types of plaintiffs do presumed damages typically serve?
“Private persons face ‘real risk of harm’ given how easy it is to defame others on the Internet and that presumed damages therefore serve a legitimate interest that should remain part of the Common law: ‘Presumed damages vindicate the dignitary and peace-of-mind interest in one’s reputation that may be impaired through the misuse of the Internet.’” W.J.A. v. D.A., 210 N.J. 229, 43 A.3d 1148 (2012).
Special Damages & Per Quod Statements
Just as we associate presumed damages with defamation per se, special damages are associated with the legal principle of defamation per quod. Specifically, defamation per quod requires plaintiffs to prove they suffered a special type of damage through the provision of extrinsic and supporting evidence.
Under New Jersey law, general injury to reputation may be inferred from evidence proving special damages. Sisler v. Gannett Co., Inc., 104 N.J. 256, 516 A.2d 1083, 13 Media L. Rep. 1577 (1986). However, make sure to understand that the per se – per quod distinction in New Jersey will only apply to slander cases as far as the requirement for special damages is concerned. Arturi v. Tiebie, 73 N.J. Super. 217, 222–223, 179 A.2d 539 (App. Div. 1962).
Special damages have not been expanded upon in any significant way in New Jersey.
Actual Damages: Injury Must be Tangible & Actual
Also known as ‘Compensatory damages’, actual damages are as their name implies, actual – meaning, the plaintiff must prove they suffered actual or tangible injury as a result of a defamatory statement(s).
Generally, actual damages are awarded in cases where a plaintiff is able to prove they suffered tangible injuries, such as distress, anxiety, or other physical effects.
New Jersey courts have recognized the Gertz rule when dealing with actual damages, which requires plaintiffs to show they suffered actual injuries before they are able to recover damages. Krumholz v. TRW, Inc., 142 N.J. Super 80, 89, 360 A.2d 413 (App. Div. 1976).
The common law requirement that corporate libel plaintiffs must plead and prove pecuniary business injury was recognized in Canino v. New York News, Inc., 96 N.J. 189, 195, 475 A.2d 528, 10 Media L. Rep. 1852 (1984). Trenton Mut. Life & F. Ins. Co. v. Perrine, 23 N.J.L. 402 (Sup. Ct. 1852).
Note that general injury to reputation may be inferred from evidence proving special damages. Sisler v. Gannett Co., Inc., 104 N.J. 256, 516 A.2d 1083, 13 Media L. Rep. 1577 (1986). However, the per se – per quod distinction only applies to slander cases as far as the requirement for special damages is concerned. Arturi v. Tiebie, 73 N.J. Super. 217, 222–223, 179 A.2d 539 (App. Div. 1962).
In order to prove damages stemming from slanderous remarks, the harm must result from the conduct of a third person and not from the defamer; for example, emotional distress caused to a person slandered by his knowledged that he has been defamed is not special harm, even if the distress results in serious illness. Arturi, supra, 73 N.J. Super. at 223. Ward v. Zelikovsky. 136 N.J. 516, 541, 643 A.2d 972 (1994).
Furthermore, damages resulting from loss of consortium arising out of a libel were awarded by the lower court in Theckston v. Triangle Publications, Inc., 100 N.J. Super. 452, 242 A.2d 629 (App. Div. 1968). It’s worth keeping in mind that the verdict was ultimately reversed by the Appellate Division on grounds of privilege.
Also, a jury verdict of compensatory damages of $1,324,000 to a plaintiff employee, $200,000 to a plaintiff spouse and $40,000 to a plaintiff co-employee was affirmed by the Appellate Division in New Jersey. Almog v. ITAS, 298 N.J. Super. 145, 689 A.2d 158 (App. Div. 1997), appeal dismissed, 152 N.J. 361, 704 A.2d 1297 (1997).
Finally, in Stevens Institute of Technology v. Hine, 2007 N.J. Super. Unpub. LEXIS 1268, (App. Div. July 31, 2007) certif. denied, 193 N.J. 274; 937 A.2d 976 (2007), the Appellate Division held that expenditures by the plaintiff to mitigate harm caused by the defendant’s defamatory statements constituted allowable damages.
Punitive Damages: Awarded in Order to Punish
Commonly referred to as “Exemplary damages,” punitive damages are damages awarded to a plaintiff in order to punish a defendant for especially malicious, reckless, or wanton behavior when communicating or publishing a defamatory statement. Punitive damages are often awarded in cases where the plaintiff committed deliberate violence against a plaintiff, fraud, or gross negligence.
Under New Jersey statute, the right of private and public figure plaintiffs to recover punitive damages is limited to those cases where the plaintiff proves either “malice in fact” or the defendant’s failure to retract the statement after a reasonable request for retraction has been communicated. N.J.S.A. 2A:43-2. Note that malice in fact under this statute has been equated with reckless disregard for the truth. Burke v. Deiner, 97 N.J. 465, 475, 479 A.2d 393 (1984).
For the effect of the new punitive damages statute, please see II.B. infra. In Almog v. Itas, 298 N.J. Super. 145, 689 A.2d 158 (App. Div.), appeal dismissed, 152 N.J. 361, 704 A.2d 1297 (1997). The Appellate Division upheld a jury verdict of $4.5 million and $1.0 million to each plaintiff in punitive damages, in addition to compensatory damages, because of overwhelming evidence of the defendant’s’ intentional, malicious, and egregious defamatory wrongdoing. In Conte v. Mayor & Council of the City of Garfield, 2003 WL 22019955 (App. Div. 2003) a showing beyond actual malice of “especially egregious conduct” was required for punitive damages.
|Presumed Damages||Special Damages||Actual Damages||Punitive Damages|
|Definition||Damages typically associated with defamation per se, which do not need to be proved by the plaintiff.||Damages usually associated with defamation per quod, which require production of extrinsic evidence to show the defamatory nature of a statement.||Damages which are sought after the plaintiff is able to prove they suffered actual injuries.||Damages awarded to a plaintiff in order to punish a defendant for intentional, malicious, and egregious defamatory wrongdoings.|
|How to Prove||Generally, presumed damages need not be proved.||Under New Jersey Law, special damages will only arise in cases of slander, and where the plaintiff can prove there was conduct by a third party which caused harm to the plaintiff.||Generally, plaintiffs seeking actual damages will be required to show there was a relationship or proximate cause between the defamatory communication and injury.||Under New Jersey statute, a plaintiff must prove there was “malice in fact” or a failure by the defendant to retract the statement after a reasonable request. Furthermore, under the Punitive Damages statute, a plaintiff must prove a showing of intentional, malicious, and egregious defamatory wrongdoing by the defendant. A New Jersey Court has also required the showing of “especially egregious conduct.”|
Defamation Removal Fact: Remember, if you’ve been defamed and libeled online, your best chance of legal recourse is not bringing a claim against the Internet Service Provider or website, but seeking to identify the malicious individual/troll who posted such defamatory remarks. Make sure to reach out to an experienced defamation attorney to assist in formulating a defamation removal gameplan!
Frequently Asked Questions (FAQ)
Let’s take a look at some of the most frequently asked defamation questions.
Q. Has there been any effect of the Internet on free speech in the state of New Jersey?
A. Yes. Specifically, the Internet has had an effect on free speech in regards to private persons who are defamed online. Presumed damages will be awarded to vindicate the dignitary and peace-of-mind interest in one’s reputation after being impaired through misuse of the Internet. W.J.A. v. D.A., 210 N.J. 229, 43 A.3d 1148 (2012).
Q. Are there any protections for anonymous speech in New Jersey?
A. Yes. Let’s take a look at few examples and cases.
- Prima Facie case: A New Jersey appeals court affirmed the ruling of a lower court, which had held that the identity of an anonymous commenter online was not discoverable because the Plaintiff had not made a prima facie case and the comments were privileged. Trawinski v. Doe, No. A-0312-14T1, 2015 N.J. Super. Unpub. LEXIS 1290 (Super. Ct. App. Div. June 3, 2015).
- Dendrite: The court in Dendrite laid out a procedure for plaintiffs wanting to discover the identity of an anonymous Internet user. The Court said that first the plaintiff would have to make reasonable efforts to contact the anonymous user. This would include, for example, posting a message to the user on the message board they were using. The plaintiff must also plead/identify the exact language that they contend is libelous and defamatory. Furthermore, the plaintiff must provide enough evidence to the court to make its prima facie case and be able to survive a motion to dismiss for failure to state a claim upon which relief can be granted. Finally, the court must balance the anonymous user’s First Amendment right to anonymous speech against the strength of the Plaintiff’s prima facie case. The court will also look into whether it is necessary to disclose the identity of the anonymous poster or user for the plaintiff to proceed with his or her case. Dendrite Intern., Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (Super. Ct. App. Div. 2001).
- Hospital hack: An anonymous person hacked into a hospital’s private message board and posted defamatory and libelous links and statements to a YouTube video. Ultimately, the court rejected the Dendrite test because the anonymous user/person(s) did not actually post comments on the open Internet, but instead merely hacked into the hospital’s network. The court likened such hacking to breaking into the hospital.
Q. Can New Jersey libel and slander plaintiffs retract, correct, or clarify defamatory statements and communications prior to litigation?
A. In New Jersey, state law governs retractions. See N.J.S.A. 2A:43-2.
It reads, “…the defendant in an action for libel against the owner, manager, editor, publisher or reporter of any newspaper, magazine, periodical, serial or other publication in this state, may give proof of intention; and plaintiff, unless he shall prove either malice in fact or that defendant, after having been requested by plaintiff in writing to retract the libelous charge in as public a manner as that in which it was made, failed to do so within a reasonable time, shall recover only his actual damage proved and specially alleged in the complaints.”
Generally, a retraction must be a full and unequivocal statement which does not contain lurking insinuations or hesitant withdrawals, and must be an honest endeavor to repair the wrong done by the defamation. Brogan v. Passaic Daily News, 22 N.J. 139, 123 A.2d 473 (1956) (overruled on other grounds), Maressa v. New Jersey Monthly, 89 N.J. 176 (1982).
Q. Can New Jersey defamation plaintiffs bring a defamation suit against out-of-state defendants?
A. Simply put, yes. However, there are several requirements.
Specifically, the New Jersey courts have adopted the effects test from Calder v. Jones (see Section 2), which looks to where the effects of the potentially tortious act were intended or expected to be felt. Goldhaber v. Kohlenberg, 395 N.J. Super. 380 (Super. Ct. App. Div. 2007); See also, Blakey v. Cont’l Airlines, 164 N.J. 38 (2000).
Furthermore, New Jersey’s Long Arm Statute permits service on nonresident defendants subject only to “due process of law,” and will allow out-of-state service to the uttermost limits permitted by the United States Constitution. R. 4:4-4(e). Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971); See also, Ragonese v. Rosenfeld, 722 A.2d 991 (N.J. Sup. Ct. 1998).
Q. Has New Jersey criminalized defamation in their books?
A. No. New Jersey has repealed all of its criminal libel and slander laws. State v. Burkert, 231 N.J. 257 (2017).
Q. What are SLAPP Lawsuits? Does New Jersey have any Anti-SLAPP statutes to protect against such lawsuits?
A. Standing for “strategic lawsuits against public participation (SLAPP),” SLAPP lawsuits are suits brought by persons or organizations seeking to intimidate, burden, censor, or otherwise scare a defendant in order to deter actual litigation of a particular issue.
Unfortunately, New Jersey does not have any Anti-SLAPP statutes in their books.
Q. What is the Reporter’s Shield Law?
A. Subject to Rule 37 [Rule 530], “a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so athered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature of legislative committee, or elsewhere:
- The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
- Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.”
Let’s take a look at a New Jersey case where they ruled on the reporter’s shield law.
In a 2010 case, the defendant claimed that she engaged in investigative journalism and posted her findings on Internet bulletin boards. Ultimately, the Court found that New Jersey’s shield law did not protect the defendant because posting to Internet bulletin boards is not close enough to journalism to be protected by the shield law. Too Much Media, LLC v. Hale, 413 N.J. Super. 135, 993 A.2d 845 (Super. Ct. App. Div. 2010). N.J.S.A. § 2A:84A-21.
Q. Are there any other relevant and important nuances of New Jersey defamation law?
A. In a case where a defendant was criticizing a church online, the church claimed that the posts constituted trade libel. Under New Jersey law, “The elements of trade libel are: (1) publication; (2) with malice; (3) of false allegations concerning its property, product or business, and (4) special damages, i.e. pecuniary harm.”
Specifically, trade libel cases require proof of special damages. And, the church did not plead with specificity any special damages, so the defendant’s motion to dismiss was granted. World Mission Soc’y Church of God v. Colón, 2013 N.J. Super. Unpub. LEXIS 3075, *26-27.
Q. What is the legal doctrine of Prior Restraint? Does New Jersey have any laws concerning Prior Restraint?
A. Prior restraint is a legal doctrine which concerns the government’s censorship of a communication, statement, or publication before it is actually published.
New Jersey does not have any notable cases related to the legal principle of prior restraint.
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- Courtesy & Respect: At Minc Law, we know just how overwhelming and stressful online defamation can be, so just know that your goals are our goals, and we are always on your side.
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