Table of Contents
New York’s Definition of Defamation
Defamation, commonly referred to as defamation of character, is an all-encompassing legal term defined as a false communication or statement to a third-party, resulting in harm to a person’s reputation. Defamation is considered a civil wrong in Common Law jurisdictions, and may also be referred to as the “tort of defamation.”
Now, let’s dive into this “all-encompassing” term further. More specifically, defamation can be broken down into two types:
- Libel: the written or published communication of a false statement to a third-party causing harm or damage to a person’s reputation.
- Slander: the spoken communication of a false statement to a third-party causing harm or damages to a person’s reputation.
It’s important to acquaint yourself with the distinctions between the two, as statute of limitations for libel and slander may vary by state, and oftentimes slander actions require a claim be brought sooner than a libel claim.
Some other common names defamation may be referred to as are:
- Character assassination,
- Vilification, &
New York defines defamation as a statement “which tends to expose a person to hatred, contempt, or aversion or to induce an evil or unsavory opinion in the minds of a substantial number of people in the community.” Mencher v. Chesley, 297 N.Y. 94, 75 N.E.2d 257 (1947).
New York really hammers home that “the essence of the tort is damage to reputation.” Id.
New York Defamation Elements
When bringing a defamation action in New York, a plaintiff will be required to prove certain elements in order to succeed in their claim, such as:
- A false statement;
- Published to a third-party without privilege of authoriation;
- With fault amounting to AT LEAST negligence;
- That caused special harm or ‘defamation per se’.
Defamation of Character Tip: The party who defames another may be called a “libeler,” “slanderer,” “defamer,” or the less common term of “famacide.”
If you’re a New York or U.S. resident and are the victim of online defamation, the defamation removal lawyers of Minc Law want to fight for your reputation.
At Minc Law, we boast a nearly 100% removal rate, and all for a flat fee. Aaron and his team of experienced defamation removal lawyers have removed hundreds of defamatory online postings and litigated in over 19 states and 3 countries.
New York’s Pleading Standard for Defamation
Governed by the Federal Rules of Civil Procedure, pleadings are formal written statements outlining a party’s claims, issues, and defenses in a civil proceeding. Each state has their own statutes and rules governing pleadings in the courts of that state, so its important to familiarize yourself with your state’s specific rules.
First, let’s take a look at what pleadings are and some common examples.
- Complaint: the first pleading filed by a plaintiff which initiates the lawsuit. Complaints set forth a party’s claims, and positions against against a defendant, establishing the facts, issues, and damages of the case.
- Answer: the pleading filed by a defendant admitting or denying the specific allegations and claims set forth by the plaintiff in their complaint. A defendant’s answer will typically argue why a plaintiff’s claim shouldn’t prevail and any relevant defenses.
- Counterclaim: an opposing claim (usually made by the defendant) made to offset another claim in a legal action.
- Reply: the response by a plaintiff to a defendant’s answer, occuring after a defendant has asserted a counterclaim.
Depending on the nature of certain claims, the law requires specific pleading requirements. For example, in some areas of law, courts may require plaintiffs to follow stricter procedural requirements, or include specific or exact language.
When bringing a defamation claim, New York law requires a plaintiff’s complaint to “set forth the particular words allegedly constituting defamation and it must also allege time when, place where, and the manner in which the false statement was made, and specific to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept.2009).
Simply put, a defamation claim in New York must specify the:
- What: Particular defamatory words used,
- When: Time they were spoken, written, or published,
- Where: Place they were spoken, written, or published,
- How: Manner in which they were spoken, written or published, &
- Whom: Party or source to whom the statement was made.
Heightened pleading requirements in New York allow for a court to have a better understanding of whether the statement(s) in question is defamatory or non-actionable, and provides defendants with a better opportunity to understand the claim and issues in questions – ultimately leading to the opportunity to formulate an informed defense.
Now, let’s take a look at some statements that the Common Law, and New York, both classify as so inherently defamatory that plainitffs need not prove the fourth required element of a defamation claim – damages. Such statements are commonly referred to as “defamation per se.”
What is Defamation Per Se? What Statements Are Considered ‘Per Se’ in New York?
Depending on the nature of publication, defamation per se can also be referred to as “libel per se” or “slander per se.” In New York, four core statements will be considered defamatory ‘per se’:
- Statements charging a plaintiff with a serious crime,
- Statements that tend to injure another in his or her trade, business, or profession,
- Statements imputing a loathsome disease on a plaintiff, &
- Statements imputing unchastity on a woman.
Expanding upon injurious statements made to another’s trade, business, or profession, a New York court stated, defamation per se will occur when words affect a person “in his profession, trade, or business, by imputing to him any kind of fraud, dishonesty, misconduct, incapacity, unfitness, or want of any necessary qualifications in the exercise thereof.” Four Star Stage Lighting, Inc. v. Merrick, 56 A.D.2d 767, 392 N.Y.S.2d 297 (1st Dept. 1977).
Let’s take a look at several cases where New York courts found certain false statements to constitute defamation per se.
- Serious crime:
- An email stating two persons “are thieves” was considered defamation per se, absent a showing the content was made in jest. Suarez v. Angelet, No. 5192/10, 2011 NY Slip Op 09309 (2d Dep’t Dec. 20, 2011).
- A New York court found that an anonymous internet blog stating the plaintiffs engaged in an “illegal scam” was in fact defamatory, and ordered the internet service provider (ISP) to disclose the identity of the anonymous internet poster. Ottinger v. Non-Party The Journal News, 2008 N.Y. Misc. LEXIS 4579, 36 Media L. Rep. 2018, 240 N.Y.L.J. 10 (N.Y. Sup. Ct. 2008).
- Unchastity & loathsome disease:
- Posting pornographic pictures and statements linked to a person’s name on various websites was considered defamation per se because it implied the person was lustful and promiscuous. Leser v. Penido, 62 A.D.3d 510, 879 N.Y.S.2d 107 (1st Dep’t 2009).
- The anonymous blog titled “Skanks of New York,” calling a woman sexually promiscuous, dishonest, and unclean constituted defamation per se, and entitled her to pre-action disclosure of information as to the identity of the anonymous blogger. Matter of Cohen v. Google, Inc., 25 Misc. 3d 945, 887 N.Y.S.2d 424, 2009 N.Y. Misc. LEXIS 2302 (N.Y. Sup. Ct. 2009).
Defamation Per Quod
Opposite to defamation per se is “defamation per quod,” requiring plaintiffs to provide extrinsic and supporting evidence to prove the defamatory nature of the alleged statement(s) in question.
Defamation per quod is not inherently apparent, and are typically associated with “special damages” (as discussed in Section 5) due to the need to estimate or itemize losses and damage.
Important New York Defamation Requirements & Formalities
Do New York Courts Have Jurisdiction Over Out-of-State Defendants?
It’s complicated, but yes – in certain situations.
New York’s Long-Arm statute possesses an intentionally narrower reach than other state long-arm statutes. Such narrowness limits the scope by which courts may have jurisdiction over out-of-state defendants. CPLR § 302(a)(2).
Jurisdiction over out-of-state defendants will exist when a defendant:
- Publishes material online,
- Which is based on the transaction of a business.
More specifically, when a party engages in business in New York, and makes a defamatory statement outside of New York regarding that transaction, New York courts may assert jurisdiction over them. GTP Leisure Products, Inc. v. B-W Footwear, Co., 55 A.D.2d 1009, 391 N.Y.S.2d 489 (4th Dep’t 1977).
Let’s take a look at five (5) cases where courts determined whether jurisdiction over out-of-state defendants existed or not.
- A magazine neither incorporated, nor with their principal place of business, in New York was found to be subject to New York jurisdiction when 10% of its total subscription sales, and 15% of their total sales, were in New York. Brower v. New Republic, 7 Media L. Rep. 1605 (Sup. Ct. N.Y. Cty. 1981).
- No jurisdiction was found over a publisher who published their magazine in Washington D.C. – distributed it nationwide – but neither the publication nor the alleged defamatory statement targeted anyone located within New York. Weil v. American University, 36 Media L. Rep. 1596 (S.D.N.Y. 2008).
- No jurisdiction existed over an out-of-state operator of a national consumer website where the posting of allegedly defamatory statements and material was accessible in New York, but not purposefully directed towards New Yorkers. Additionally, no claim arose from accepting donations or doing business in New York. Best Van Lines, Inc. v. Walker, 490 F.3d 239 (2d. Cir. 2007).
- A question existed as to whether New York had personal jurisdiction over a website operator after he listed in his website “About” section that he resided in both Shanghai and New York, even though he subsequently denied he resided in New York for the last 12 months. Deer Consumer Prods., Inc. v Little, 35 Misc. 3d 374, 938 N.Y.S.2d 767, 2012 N.Y. Misc. LEXIS 352, 2012 NY Slip Op 22021 (N.Y. Sup. Ct. 2012).
- A non-resident, who allegedly posted defamatory statements from his personal computer in Virginia and on his personal website about a New York plaintiff was not subject to New York’s Long-Arm statute. Gary Null & Assoc. v Phillips, 29 Misc. 3d 245, 248, 906 N.Y.S.2d 449 [Sup Ct, New York County 2010].
Defamation Removal Tip: When tackling online defamation, it’s important to preserve any supporting evidence. Screenshotting the allegedly defamatory material is an effective way to support your claim.
In Which Venue Can New York Defamation Plaintiffs Sue a Defendant (Where Can I Sue Someone For Defamation?)
After a party discovers they are a victim of defamation, it’s important to understand where one can bring a defamation lawsuit.
Generally, in New York, except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it [the action] commenced.
Or, if none of the parties then resided in the state, the place of trial shall be in the county designated by the plaintiff. VY CPLR § 503(a).
What is New York’s Statute of Limitations For Bringing Defamation Claims?
A statute of limitations is a law defining the time period a plaintiff has to bring and initial legal proceedings against a defendant. Should a plaintiff fail to bring their claim within the prescribed time period, then they will be barred from filing a claim – or if they do file a claim, it will likely be dismissed.
Specifically, statute of limitations exist for three primary reasons:
- To encourage plaintiffs to pursue valid cause of actions with reasonable diligence,
- To prevent lost or destroyed evidence by a defendant, and
- To prevent more “cruelty than justice.”
For both libel and slander actions, New York plaintiffs must commence action within one (1) year of the date the defamatory material was published or communicated to a third-party. CPLR § 15 sub. 3.
Libel Removal Tip: Sending a cease and desist letter is a free and easy way to let offending party you mean business. Cease and desist letters not only save time, but money, and will often accomplish what you’re seeking to do. However, if your cease and desist is ignored, reach out to an experienced defamation removal lawyer to explore your options.
Single Publication Rule
The ‘single publication rule’ is a legal doctrine governing a defamation case of actual accrual date and its statute of limitations. Under the single publication rule, plaintiffs to a libel suit may only bring one (1) claim for each mass publication of a defamatory statement by a publisher. Such rule limits plaintiffs bringing a claim for every book, magazine, or issue that is subequently run with the defamatory material.
The single publication rule was created with a practical purpose in mind, to prevent and avoid the “multiplicity of actions” and to protect defendants from excessive liability based on one publication.
The single publication rule is most applicable in situations where a newspaper, magazine, or other media body publishes several prints or copies of a defamatory and false statement.
New York follows the single publication rule.
But, what is the implication of New York following the single publication rule?
The statute of limitations for posting defamatory online content will begin to toll at the time the actual defamatory statement is published. Firth v. State, 184 Misc. 2d 105, 706 N.Y.S.2d 835 (Ct. Claims 2000).
However, there are several exceptions to the single publication rule in New York.
Exceptions to New York’s Single Publication Rule
- The publication of a newspaper on a website in a separate print edition publication will constitute a republication and an exception to the single publication rule because online publications and print publications are designed to reach different audiences. Rivera v. NYP Holdings, Inc., 16 Misc. 3d 1121(A), 847 N.Y.S.2d 904 (Sup. Ct. N.Y. CTY. 2007).
- Accessing an article on the Internet after its initial publication will not restart the statute of limitations for an online libel or defamation claim. Manfredonia v. Weiss, No. 103498/05 (Sup. Ct. N.Y. Co. Dec. 5, 2005).
- The single modification of a website and defamatory content on it will not constitute a republication. Admissions Consultants, Inc. v. Google, Inc., No. 115190/07 (N.Y. Sup. Ct. Dec. 1, 2008).
- If the defamatory material posted on one website is relocated to a second website, that relocation to the new website will constitute a republication of defamatory comment, and thus, restarting the statute of limitations. Rare 1 Corp. v. Moshe Zwiebel Diamond Corp. 13 Misc.3d 279, 822 N.Y.S.2d 375 (N.Y. Sup. Ct. 2006).
How Does New York’s Statute of Limitations Compare to Other States?
Typically, most states have a one to two year statute of limitations period for defamation of character claims. It’s also worth noting that some states have distinct statute of limitation timerames for libel and slander claims.
For reference, here’s a quick chart of a few states and their defamation statutes of limitations.
|Ohio||One (1) year|
|Utah||One (1) year|
|Florida||Two (2) years|
|South Carolina||Two (2) years|
|New Hampshire||Three (3) years|
|Massachusetts||Three (3) years|
If you’re looking to brush up on all 50 states and their defamation statute of limitations timeframes, you can check out a comprehensive guide here.
If you’ve been the victim of online defamation and want to learn about your legal rights and options, reach out to Ohio Superlawyer Aaron Minc, and his team of defamation removal lawyers.
At Minc Law, we boast a nearly 100% online defamation removal success rate, and have secured hundreds of takedowns – all for a flat, reasonable fee.
Public vs. Private Persons: Which One Am I?
Before commencing a defamation claim, you should first identify what type of plaintiff you are, as the legal rights and burdens of proof afforded to private and public persons can vary greatly in defamation law.
First, why does it matter whether I’m a public or private plaintiff?
In 1964, the landmark defamation case of New York Times Co. v. Sullivan laid the framework for modern day public and private plaintiffs, differentiating between the two for purpose of promoting “uninhibited debate of public issues” and the upholding of the First Amendment. The Supreme Court found that in order to succeed in one’s defamation claim, private and public plaintiffs would require two distinct burdens of proof.
Public persons: As public parties – such as celebrities, politicians, and persons integral to public decision making – have availed and opened themselves up to a higher degree of scrutiny by the public than the average person, it’s in the best interest of free speech, social policy, and debate, that the general public feel safe and able to discuss matters about them and other hot-topic and contentious matters without fear of lawsuit or legal repercussion. In order to succeed in a defamation claim, public persons are required to prove defendants published or made a statement with actual malice – or the requisite knowledge the statement was false or with reckless disregard.
Private persons: Private persons – such as the average person who is neither a celebrity nor public official – have not availed themselves to such public scrutiny and discussion, choosing to keep their lives… well private. Private parties are only required to prove a defamation defendant acted with ordinary negligence when publishing or making a false statement to a third-party. Ordinary negligence is defined as the care that would normally be exercised by a reasonably prudent person in similar circumstances.
To read up more on ordinary negligence and actual malice, check out our detailed blog post here.
Defamation Law Tip: Suppressing negative search results and online posts is an effective way towards minimizing the impact online defamation has on your reputation. For example, there are several free and simple steps you can take to supress negative online search results and clean up your digital footprint. (1) Set your social media profiles to public and start actively posting, (2) Start a blog and frequently update it, and (3) Link between your various social media accounts.
So, what’s New York’s stance on public vs. private persons?
As New York defamation law was the epicenter for Sullivan, its stance towards public and private officials as remained the same since, prescribing for successful recovery of damages, that a public official or public figure must prove by clear and convincing evidence that a publication was made with “actual malice.”
Once again, the standard set forth in New York Times v. Sullivan to determine whether a party is a public figure is based on if a plaintiff has “thrust himself into the middle of a public issue or controversy, or has taken affirmative steps to attract public attention.” James v. Gannet, 40 N.Y.2d 415, 353 N.E.2d 834 (1974).
In New York, actual malice involves the subjective state of mind of the speaker or publisher at the time the defamatory statement was made. Additionally, courts must look to whether the publisher or speaker believed the statement was false, or whether he published or spoke it with reckless disregard for the truth – or a high probability of awareness that the statement was false. Rinaldi v. Holt, Rinehart, Winston, 42 N.Y..2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299 (1977).
Issues of Public vs. Private Concern
Just as public persons are held to a higher standard when proving defamation, statements and publications of public concern enjoy greater protection in furtherance of a well-informed society. Imagine a society where public debate and discussion of political, social, and economic issues were censored. Ultimately, this would lead to a degradation of society and an overall less-informed individuals.
So, what does this mean?
Depending on the nature of the statement – whether it is of public or private concern – plaintiffs may be required to prove more than than mere negligence in order to successfully recover damages.
For reference, the United States Supreme Court ruled on private vs. public issues, requiring private defamation plaintiffs prove actual damages when “an event of public or general concern” is the focus of a publication. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).
New York’s Stance On Public v. Private Issues
New York takes a different approach towards matters of public concern. More specifically, when a person is considered a private individual who is involved in a matter arguably of legitimate public conern, he must establish by preponderance of the evidence (more likely than not) that the publication was made in a:
- Grossly irresponsible manner, &
- Without due regard for the standards of information gathering and dissemination ordinarily followed by responsible parties involving similar matters. Chapadeau v. Utica Observer-Dispatch, 38 N.Y.2d 196, 379 N.Y.S.2d 61, 341 N.E.2d 569 (1975).
Otherwise stated, for a private plaintiff involved in a matter of public concern to succeed, the plaintiff must show the defamatory statements were made with extreme negligence, and the defamer – party making the statements – did little-to-no due diligence before making said defamatory statements.
Let’s take a look at a few New York cases where no gross irresponsibility by the defendant was found.
- Book review: A New York court found no irresponsibility where a publisher carefully reviewed a book before publication. Weiner v. Doubleday & Co., 142 A.D.2d 100, 535 N.Y.S.2d 597 (1st Dep’t 1988).
- Responsible reporting: No gross irresponsibility was found where a reporter attended hearings, spoke with committee staff, and studied the report at issue. Med-Sales Assoc., Inc. v. Lebhar-Friedman, 663 F. Supp. 908 (S.D.N.Y. 1987).
- Reputable republishing: A defendant who republished a news report from a reputable broadcaster did not act with gross irresponsibility. Bryks v. Canadian Broadcasting Corp., 928 f. Supp. 381 (S.D.N.Y. 1996).
Defamation Removal Tip: Setting up a Google Alerts account is an effective way to stay on top of your online defamation. Google Alerts will let you know anytime your name has been mentioned online, or in conjunction with unsavory words or phrases you mentioned. Google Alerts allows you to immediately respond and take action, giving you time to remove it before it spreads.
Common Defenses to Defamation in New York
Even after publishing or conveying defamatory statements to a third-party, defendants may rely on a wide-array of defenses and arguments to rebut a charge of libel or slander. It’s worth noting that there are even some particular circumstances and situations where a defendant was authorized by law to speak or publish a defamatory statement.
Below is a list of some of the most common defenses and protections relied on by defamation defendants in New York.
- Privilege (Absolute, Qualified, Fair Report),
- Single Instance Rule,
- Libel-Proof Plaintiff Doctrine, &
- Incremental Harm Doctrine.
Opinion is one of the most common defenses to defamation and is considered a “complete defense” – meaning that litigation will end in favor of the defendant. Compared to the United States Supreme Court, New York actually provides greater protection for parties relying on the defense of opinion – an affirmative defense against claims of defamation. Mann v. Abel, 10 N.Y.3d 271, 276, 856 N.Y.S.2d 31, 885 N.E.2d 884 (2008).
Remember, the definition of defamation requires the false assertion of fact for it to be actionable.
In order to determine whether a statement is opinion or fact, New York courts employ the following test and:
- Examine the language complained of to see if it is objectively verifiable. That is, they examine whether the statement can be proven.
- Examine the statement in its immediate context.
- Examine the broader social context that may affect the average person’s perception of the statement.
Simply put, the fundamental difference between fact and opinion is whether the statement can be objectiviely verified and prove true or false by a court of law. If the statement can be proved true or false, the defamation case will proceed.
However, should the statement be unable to be objectively verified and proved true or false, then the libel or slander case will be dismissed without ever having to go before a jury.
To read up further on whether a statement is considered opinion or fact, check out our detailed post here.
4 Examples of Opinion in New York
- School funding & bigotry: In the context of a charged debate over school funding, anonymous online blog posts calling the plaintiff a bigot – because she opposed public funding for a school – was considered to be protected under the defense of opinion. Greenbaum v. Google, Inc., 18 Misc. 3d 185, 845 N.Y.S.2d 695 (Sup. Ct. N.Y. Cty. 2007).
- Liars & cheaters: Statements posted on a website claiming the plaintiff “lied and cheated all through 40 years of life” and was “great at lying and covering it up without batting an eye,” was determined to be clear hyperbole and non-actionable opinion. Coulote v. Ryncarz and Blitsch, 11 CV 5968, NYLJ 1202543438909 (S.D.N.Y. Feb. 15, 2012).
- Promiscuity: A New York court rejected an anonymous poster’s argument that internet posts calling a woman a “skank” and otherwise promiscuous were opinion, based on the context that they were posted online. The protection of the right to communicate anonymously MUST be balanced against the need to assure that those persons who choose to abuse the internet can be made to answer for such transgressions. Matter of Cohen v. Google, Inc., 25 Misc. 3d 945, 887 N.Y.S.2d 424, 2009 N.Y. Misc. LEXIS 2302 (N.Y. Sup. Ct. 2009).
- Scams: An online poster that posted statements about a car warranty provider, stating the company was “running scams” and was a “blatantly dishonest company” was declared non-actionable opinion. Penn Warranty Corp. v. DiGiovanni, 10 Misc.3d 998, 810 N.Y.S.2d 807 (N.Y. Sup. Ct. 2005).
Since defamation concerns the publication of a false statement or fact, a plaintiff’s defamation claim will not prevail where the statement in question is true. After all, the censoring of fact and truth would lead to a slippery slope for free speech.
Truth is considered an absolute and unqualified defense to defamation, and includes statements that are “substantially accurate.” Commonwealth Motor Parts, Ltd. V. Bank of Nova Scotia, 44 A.D.2d 375, 355 N.Y.S.2d 138 (1st Dep’t 1974).
Substantial truth is a legal doctrine guiding libel and slander laws in the United States, and holds that statemenets even with “slight inaccuracies of expression” do not make the alleged defamation false. As long as the defendant proves that the “gist” or “sting” of the matter is true, truth will be a valid defense.
3 Examples of Substantial Truth
- A statement that the plaintiff had not honored a pledge to donate proceeds from the sale of their artwork was “amply supported by the record,” and thus deemed substantially accurate. Suson v. NYP Holdings, Inc., 19 Misc. 3d 116(A) (Civ. Ct. N.Y. Cty. 2008).
- A newspaper went well beyond the scope of an FDA report to create a false and misleading impression regarding the plaintiff’s food products. Edward B. Beharry & Co., Ltd. V. Bedessee Imports Inc., 2010 WL 1223590, 95 U.S.P.Q.2d 1480 (E.D.N.Y. Mar. 23, 2010).
- An Internet article detailing the alleged illicit activity of a Russian corporation and its officers, including nefarious activities of various subsidiaries – which was based on specific actions of the corporation and its officers – was deemed to be “substantially accurate” and thus a complete defense to defamation. Stepanov v. Dow Jones & Comp., Inc., 120 A.D.3d 28, 987 N.Y.S.2d 37 (1st Dept. 2014).
Privilege (Absolute, Qualified, Fair Report)
The defense of privilege occurs when a plaintiff has a legal right, entitlment, or immunity granted to them when speaking or publishing a statement. Privilege permits certain persons, or persons in specific circumstances, to speak and publish statements – even if they are defamatory.
Without privilege, persons carrying out particular duties would be hindered from doing their job and furthering the advance of political, social, financial, and economic ideals and policies. Additionally, parties would not engage in free debate and open discussion due to the fear of legal consequences.
In New York, the defense of privilege can be classified into three distinct types:
- Absolute Privilege,
- Qualified Privilege, &
- Fair Report Privilege.
Absolute privilege is a guaranteed and unqualified right for a speaker or publisher to make a specific statement and at a certain time – even if the statement is defamatory. Absolute privilege is the most comprehensive form of privilege, and even applies in situations where a party published a statement with actual malice.
Below are three cases illustrating when and where absolute privilege will apply.
- Legislative proceedings: Privilege will attach to statements made in legislative proceedings. Stepien v. Schaubert, No. 08CV487A, 2010 WL 1876763 (W.D.N.Y. Feb 23, 2010).
- Judicial proceedings: Statements made by participants in judicial proceedings, such as lawyers and witnesses – as long as their statements are reasonably related to the proceedings – will be absolutely privileged. Guarda v. Orange County Publications, 56 N.Y.2d 705, 451 N.Y.S.2d 724, 436 N.E.2d 1326 (1982).
- Public official discharge: Statements made by public officials during the discharge of their responsibilities are entitled to absolute privilege. Cosme v. Islip, 63 N.Y.2d 908, 483 N.Y.S.2d 205, 472 N.E.2w `033 (1984).
Statements not protected under absolute privilege may however be qualifiedly privileged – and granted to individuals in positions of authority and trust. Also known as common interest privilege, qualified privilege typically exists where a party making such statement has a moral, legal, or social duty to make that statement known to an audience or recipient, and the recipient (or audience) has an equal interest in hearing it.
Unlike absolute privilege, qualified privilege does not cover statements made, published, or relayed with actual malice.
In New York, qualified privilege will attach to statements made in good faith to a third-party with a corresponding interest or duty in the matter being communicated. Liberman v Gelstein, 80 NY2d 429, 437, 605 NE2d 344, 590 NYS2d 857 (1992).
- A newspaper editor’s comment that a columnist fabricated a column, contained in the communication to the columnist and editor-in-chief was qualifiedly privileged because all parties shared a common interest. Zion v. NYP Holdings, 18 A.D.3d 238 (1st Dep’t 2005).
- A baseball umpire’s allegedly defamatory statements about a little league coach’s “unacceptable and despicable language and behavior” in a letter to the Director of Parks and Recreation was qualifiedly privileged because the defendant made the statement to a group with whom he had a corresponding interest. Phelan v. Huntington Tri-Village Little League, Inc., 57 A.D.3d 503, 868 N.Y.S.2d 737 (2d Dep’t 2008).
Fair report privilege is a legal right granted to persons who publish reports by legislative, judicial, or other official bodies, as it’s in the public and government’s interest to trust in administrative, executive, and other official governing bodies. Additionally, it would be against public policy to punish parties who relied on such reports and information in good faith.
If the general public can’t trust reports and documents put forth by official governing bodies, then what can they trust?
In New York, a fair and substantially accurate report of an official, judicial, or legislative proceeding cannot be the basis for a defamation action. Holy Spirit Ass’n v. New York Times Co., 49 N.Y.2d 63, 424 N.Y.S.2d 165, 399 N.E.2d 1185 (1979).
New York Privilege Defense Comparison Table
|Definition||The legal and unqualified right to publish or make a statement - even if its defamatory.||A legal right granted to persons in positions of authority and trust to communication, publish, or relay specific statements - even if its defamatory.||The legal right granted to parties relying on official, judicial, and legislative reports to publish them without fear of legal consequences|
|Can it be defeated?||No, even if the statement was made or published with actual malice.||Yes, if the statement was published or made with actual malice.||Yes, if the information was not relied upon in good faith or published with actual malice.|
|Examples||Judicial, legislative, and official discharge proceedings.||Newspaper editor’s comments to a columnist and editor-in-chief about the fabrication of a story. Umpire to Director of Parks & Recreation about a coach’s behavior.||The republication of an official, judicial, or legislative proceeding’s report.|
Reputation Management & Monitoring Tip: Establishing a budget for online reputation management and brand monitoring is important for identifying infringers of your intellectual property, and understanding online users’ perception of your business and product.
Single Instance Rule
In New York, language charging a professional person with ignorance or mistake on a single occasion is not actionable unless special damages are pleaded. November v. Time, Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126 (1963).
Additionally, the single instance rule will not apply in situations where a defendant showed a lack of character or total disregard of ethics.
Everyone occasionally slips up, and New York defamation law recognizes this.
Libel-Proof Plaintiff Doctrine
Some plaintiffs are considered libel-proof where their reputation is already extremely tarnished and beyond the point of repair. In such circumstancs, a court may hold the plaintiff is libel-proof as a matter of law, because the additional defamatory statements affecting their name have such a negligible and minimal impact on them.
Simply put, if a plaintiff’s reputation cannot be harmed any further, even by the defamtory statements made by the defendant, there will be no valid cause of action. Cerasani v. Sony Corporation, 991 F. Supp. 343 (S.D.N.Y. 1998).
Incremental Harm Doctrine
The incremental harm doctrine is a rarely-applied concept in defamation and libel law, and protects defendants from liability in cases where the defamatory portion of a statement fails to exceed the harm caused by the rest of the statement – or the non-actionable portions.
If there is no substantial harm or damage caused by the statement in relation to the rest of the statement, then a defendant will not be found liable for libel or defamation.
New York courts will compare the difference between the harm caused by the non-actionable statements and defamatory statements in order to determine whether the statements are actionable. Time Warner Inc., v. Church of Scientology Int’l, 932 F. Supp. 589 (S.D.N.Y. 1996).
New York Defamation Damages
The fourth and final element in a claim for defamation in New York is damages, which requires a plaintiff to prove they suffered harm or damage. Damage is typically quantifiable (in a monetary manner), and is meant to act as compensation for a plaintiff’s loss or injury.
Defamation damages can be divided into several categories, and entails their own specific pleading requirements.
- Special damages,
- Presumed damages,
- Actual damages, &
- Punitive damages.
Special damages are damages particular and special to the situation at hand. In New York, special damages are typically associated with defamation per quod, and must be plead and proven when the language complained of is not defamation per se, involving the “single instance rule,” or involving public disparagement.
- When disparaging comments are widely disseminated, estimates of the number of lost customers and attempted itemization of investment costs will be sufficient at the pleading stage. c.f. Prince v. Fox Television Stations, Inc., No. 107129/2011 (Sup. Ct. N.Y. Cty. Nov. 23, 2011.
Just to refresh your memory, defamation per quod exists when an allegedly defamatory statement requires extrinsic and supporting evidence to prove its authenticity and is the pure opposite of defamation per se.
In New York, some courts have found it is also necessary if a plaintiff must rely on any extrinsic evidence to show defamatory meaning. Luisi v. JWT Group, Inc., 128 Misc. 2d 291, 488 N.Y.S.2d 554 (Sup. Ct. N.Y. Cty. 1985).
Presumed damages are commonly associated with defamation per se, as they are damages which don’t require a plaintiff to prove actual injury or harm. As a refresher, defamation per se acknowledges certain statements (falling into specific categories) as so inherently defamatory, that the plaintiff need not prove damages.
New York will presume damages when a plaintiff establishes defamation per se. Frank v. National Broadcasting Co., Inc., 199 A.D. 2d 252, 506 N.Y.S.2d 869 (2d Dep’t 1986).
True to its name, actual damages is monetary compensation awarded to plaintiffs who experienced real and actual harm, injury or loss due to a libelous, slanderous, or otherwise defamatory publication by a defendant. Actual damages may also be referred to as “compensatory damages.”
In New York, a plaintiff has the burden of establishing actual damages to their reputation in order to sustain a defamation of character action in the absence of actual malice. Salomone v. Macmillan Pub. Co., 77 A.D.2d 501, 429 N.Y.S.2d 441 (1st Dep’t 1980).
When dealing with pleadings, it will be sufficient or a plaintiff to simply allege damage to their reputation. Hogan v. Herald Co., 84 A.D.2d 470, 446 N.Y.S.2d 836 (4th Dep’t 1982).
Also referred to as “exemplary damages,” punitive damages are punishment damages, punishing a defendant’s behavior and defamatory statements.
To recover punitive damages in New York, a plaintiff must not only show actual malice, but also show common law malice – or spite and ill-will. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997 (1974).
- Evidence that a defendant said she was going to “nail the (plaintiff) to the wall” and “destroy him” raised a triable issue as to whether the defendant acted with hatred, ill-will, or spite. Stern v. Cosby, 645 F. Supp. 2d 258 (S.D.N.Y. 2009).
To recap, here’s a chart summing up the key points associated with each type of damages.
|Special Damages||Presumed Damages||Actual Damages||Punitive Damages|
|Definition||Damages typically associated with defamation per quod, requiring a plaintiff prove particular, peculiar, and quantifiable loss.||Damages typically associated with defamation per se, which don’t require a plaintiff to prove harm, loss, or injury.||Damages causing real and actual harm, injury, or loss to the plaintiff.||Damages enacted to punish defendants who published statements in a malicious way, and driven by ill-will and spite.|
|How to Prove||Plaintiffs must provide supporting evidence to prove the particular and special injury, loss, or harm.||Plaintiffs need not prove damages, as they are presumed.||Plaintiffs must prove actual harm, loss, or injury.||Plaintiffs must prove the defendant acted with actual malice and common law malice.|
Online Defamation Removal Tip: The term ‘libel” comes from the Latin word “libellus,” which means “small book” or “booklet.” Online libel is like a wildfire and is imperative you put it out before it spreads.
Frequently Asked Questions
Q. Are there legal protections for anonymous speech in New York?
A. Yes, there are legal protections for anonymous speech in New York.
However, in finding that an anonymous blog posted was protected by the First Amendment, a New York court stated the First Amendment protects the right of an anonymous poster to engage in speech on the Internet, and courts must balance this right with the plaintiff’s right to pursue a valid cause of action for defamation. New York has adopted the Dendrite test, stating a plaintiff must produce evidence on each element of its claim, and the court must independently balance the need for disclosure against the First Amendment values at stake. Matter of Greenbaum v. Google, Inc., 18 Misc. 3d 185, 845 N.Y.S.2d 695 (N.Y. Sup. Ct. 2007).
To determine whether to dismiss a motion to quash a subpoena request for the true identity of an anonymous poster, courts will follow a five-factor test, which considers:
- Whether there is a “concrete showing of a prima facie claim of actionable harm,
- The specificty of the discovery request,
- The absence of alternative means to gain the information,
- Whether the information subpoenaed is central to the plaintiff’s claim, &
- The anonymous parties’ expectation of privacy.
Applying such test in Sony, a Court held in favor of anonymous posters on a website, because the plaintiffs did not pursue alternative means of identifying the posters and suggested the named defendants likely knew the posters’ identities. Zherka v. Bogdanos, 08-CV-2062 (S.D.N.Y. 2009).
Q. What effect has the Internet had on free speech in New York?
A. A New York court rejected a blogger’s arguments that internet speech is entitled to higher protections. It is entitled to the same protections as other forms of speech. Matter of Cohen v. Google, Inc., 25 Misc. 3d 945, 887 N.Y.S.2d 424, 2009 N.Y. Misc. LEXIS 2302 (N.Y. Sup. Ct. 2009).
Q. Can I retract, correct, or clarify a defamatory statement before litigation?
A. New York does not have a retraction statute and retraction is generally insufficient to establish a lack of acatual malice. Kerwick v. Orange County Publications, 53 N.Y.2d 625, 438 N.Y.S.2d 778, 420 N.E.2d 970 (1981).
However, a retraction may be considered to mitigate damages. DiLorenzo v. New York News, Inc., 78 A.D.2d 669, 432 N.Y.S.2d 483 (2d Dep’t 1980).
Q. Does New York Criminalize Defamation?
A. New York is not one of the 23 states to have criminal defamation laws in their books.
Keep in mind, at the Federal level, there are no criminal defamation laws, as they have been declared constitutionally vague in several cases.
Q. Does New York Have Anti-SLAPP Laws?
A. Yes. New York’s Civil Rights Law §76-a is designed to protect parties against strategic lawsuits for public participation (SLAPP) brought by a public applicant.
SLAPP lawsuits are meritless suits filed against a person or entity with the purpose of intimidating, censoring, scaring, or burdening them with legal costs.
- A New York court granted summary judgment, dismissing as a SLAPP suit, in a former Congressmans defamation action over blog posts about an incumbent Congressman’s permit requests for a controversial home construction project. Ottinger v. Tiekert, 25 Misc. 3d 1212(A), 901 N.Y.S.2d 908 (Sup. Ct. Westchester Cty. 2009).
Q. Does New York Recognize Prior Restraint?
A. Absent special circumstances, New York courts will not issue a preemptive injuncitve order restraining libel or slander.
- A request for preliminary injunction preventing a reporter from reporting about the plaintiff’s store was denied. Foley v. CBS Broadcasting, Inc., No 108403/05 (Sup. Ct. N.Y. Cty. 2005).
- When defamation is part of a deliberate plan to destroy another’s business, a court may issue a restraining order. Wolf v. Gold, 9 A.D.2d 257, 193 N.Y.S.2d 36 (1st Dep’t 1959).
Q. What is Defamation Insurance? Which Parties Are At High-Risk of Libel & Slander Lawsuits? Should I Purchase Defamation Insurance?
A. Defamation insurance is a policy covering slander, libel, and other defamation claims against you or your business. It is typically covered under “excess liability,” an insurance policy which provides extra coverage – beyond the scope of the original policy.
Unless engaged in a high-risk profession, such as freelancing, independent contracting, journalism, or news media, you probably don’t need to purchase defamation insurance.
To read more about defamation insurance and what a comprehensive policy should include, check out our blog post titled, “What is Defamation Insurance and Do I Need It?” here.
Work With the Defamation Removal Attorneys of Minc Law Today!
If you’re a resident of New York, or anywhere in the United States, and have been a victim of libel or slander, the defamation removal lawyers of Minc Law want to work with you in order to swiftly and permanently remove any defamatory publications or statements.
At Minc Law, we have a nearly 100% online defamation removal success rate, and have litigated defamation cases in over 19 states and 3 countries, securing hundreds of removals – all for a flat rate.
When working with Aaron Minc and his team of defamation removal lawyers, here’s what you can expect:
- Respect & Courtesy: At Minc Law, we know that online defamation can be overwhelming and stressful. Aaron and his team of defamation attorneys treat all their clients with respect and courtesy. After all, your goals are our goals.
- Open Lines of Communication: Some lawyers go missing after the takedown process has begun. We will stay in constant contact with you to update you on any new details of your removal. At Minc Law, we pride ourselves on our open communication.
- Results: Our lawyers know who to work with and how to contact them. At Minc Law, we work closely with website administrators, content managers, and third-party arbitration firms to secure a seamless and effective takedown. Websites and businesses respond to Aaron and his team.