- What is Defamation? How Does Pennsylvania Define Defamation?
- Important Pennsylvania Defamation Law Requirements & Formalities
- Public vs. Private Defamation Plaintiffs: Which One Are You?
- Common Defenses to Pennsylvania Libel & Slander Claims
- Pennsylvania Defamation Damages
- Frequently Asked Questions (FAQ)
- Work with the Experienced Defamation Removal Lawyers of Minc Law Today!
What is Defamation? How Does Pennsylvania Define Defamation?
“Defamation,” commonly referred to as “defamation of character” or the “tort of defamation,” is the all-encompassing term for the spoken, written, or published communication of a false assertion of fact to a third-party, which subsequently causes injury or damage to another person’s reputation. In the United States and other Common Law jurisdictions (United Kingdom, Canada, Australia), the tort of defamation is classified as a civil wrong, meaning that defamation plaintiffs may recover damages for the harm and injury suffered due to a false statement.
Specifically, defamation may be broken down into two fundamental types – both of which are incredibly important to familiarize yourself with in case you are the victim of defamation and other false attacks.
- Slander: a spoken communication of a false assertion of fact to a third-party, which causes damage or injury to another person’s reputation.
- Libel: a written or published (think media, videos, photographs) communication of a false assertion of fact to a third-party, which causes damage or injury to another person’s reputation.
As mentioned above, it’s extremely important in United States defamation law to look to the form in which the defamation was conveyed and communicated, as most states have different legal requirements and formalities for filing both libel and slander claims. Moreover, the general public oftentimes confuses both libel and slander, opting to use “slander” as a catch-all term for defamation. And, with the vast depths and corners of the Internet, libel has become the most popular form of defamation which is litigated in U.S. courts.
One point worth noting is that due to the fleeting nature of evidence and the difficulty in proving slander, slander actions must typically be brought before libel actions in most U.S. states.
You may have also heard of defamation referred to as one of the following:
- Character assassination
Keep in mind that the tort of disparagement does not actually refer to defamation, so referring to defamation as “disparagement” is actually a misnomer. Disparagement is more accurately labelled as the “tort of business or commercial disparagement,” and is an available claim for companies and businesses who have had their proprietary or financial rights obstructed or impaired by false statements.
So, what’s the core differentiating factor from defamation? Disparagement does not deal with damage to a business or company’s reputation, rather the damage to a business or company’s rights. To read up further on the tort of business/commercial disparagement, check out our comprehensive blog post which addresses the core policies driving commercial disparagement, required elements for bringing a claim, food disparagement laws, and how to commence an action against a person or business for commercial/business disparagement.
So, what are some common names of persons who communicate and publish false assertions of fact which ultimately damage another person’s reputation?
- Defamers: the overarching name for persons who communicate or publish defamatory false assertions of fact to a third party,
- Libelers: the name given to persons who publish defamatory false assertions of fact to a third party,
- Slanderers: the name ascribed to persons who verbally communicate defamatory false assertions of fact to a third party,
- Famacide: a lesser known and rarely used legal term, famacide literally means “to destroy another person’s reputation.”
Now that you have a general understanding of the core principles guiding United States defamation law and its definitions, let’s turn to how Pennsylvania defamation law defines defamation and defamation of character, along with the required elements defamation plaintiffs must prove in order to succeed in their slander or libel actions.
Pennsylvania Defamation Law’s Definition of Defamation & Elements
Under Pennsylvania defamation law, a communication will be considered defamatory if it ““tends so to harm the reputation of [the complaining party] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”” MacElree v. Philadelphia Newspapers, 544 Pa. 117, 124-125 (Pa. 1996) (citations omitted).
In order for Pennsylvania defamation plaintiffs to succeed in their claim, they must prove the following seven (7) elements:
- The defamatory character of the communication
- Its publication by the defendant
- Its application to the plaintiff
- The understanding by the recipient of its defamatory meaning
- The understanding by the recipient of it as intended to be applied to the plaintiff
- Special harm resulting to the plaintiff from its publication
- Abuse of a conditionally privileged occasion
In this comprehensive blog post, we’ll tackle all elements required to be proved under Pennsylvania defamation law.
If you’re curious to see how Pennsylvania stacks up to other U.S. states and their defamation laws, check out our interactive United States defamation map here.
Online Defamation Removal Tip: For online defamation victims looking to merely suppress instead of remove the libelous and false online attacks, there are several free steps you can take, including: (1) creating a blog and frequently updating it with positive content, (2) making your social media profiles public and openly commenting on other high trafficked pages, (3) linking between all your various online profiles – doing so creates a “spiderweb” of positive and connected online content which Google’s search algorithm crawls.
Are you a Pennsylvania resident and have been the victim of online defamation or other false and malicious attacks? Contact the nationally recognized defamation removal lawyers of Minc Law today. We’re here to fight for your reputation.
At Minc Law, we’ve removed over 25,000 pieces of defamation from websites and other online forums, and have litigated in over 19 states and 3 countries. When working with the defamation lawyers of Minc Law, rest assured you are in good hands. Furthermore, we boast a nearly 100% online defamation takedown and removal rate, and all for a flat, reasonable fee.
Due to United States defamation law being highly nuanced and complex, we strongly recommend you consult an experienced defamation lawyer in order to explore your legal options.
The online abuse stops today!
To help you understand defamation in Pennsylvania, let’s take a look at five important defamation cases.
Defamation Cases in Pennsylvania
Below are five defamation cases where Pennsylvania courts helped narrow the scope of what should and should not constitute defamation.
- Personal philosophies: Pennsylvania courts held that calling “a person a name descriptive of his political, economic or sociological philosophies does not give rise to an action for libel.” For example, terms like “anarchists,” “paper terrorists,” and “fellow travelers” cannot be considered defamatory. Balletta v. Spadoni, 47 A.3d 183, 199 (Pa. Commw. Ct. 2012).
- Sexual relations: An article stating that a coupled sued for $10 million over the loss of sexual relations resulting from the lyrics of two songs may be considered defamatory because the statements suggested that the couple was overly concerned with money and sex. Tucker v. Phila. Daily News, 577 Pa. 598, 619 (Pa. 2004).
- Sexual misconduct: An article that alleged employment-related sexual misconduct was capable of defamatory meaning because it impacts one’s reputation, lowers standing in the community, and/or deters others from associating with the individual. Cheney v. Daily News, L.P., 2015 U.S. Dist. LEXIS 59784, *17 (E.D. Pa. May 6, 2015).
- Theft accusations: Newspaper articles that characterized the plaintiff as “a liar, a thief, and a crook” were capable of defamatory meaning as a matter of law in Pennsylvania. Smith v. Wagner, 403 Pa. Super. 316, 322 (Pa. Super. Ct. 1991).
- Cartoons: A newspaper’s cartoons could not be defamatory because “it is clear that even the most careless reader would understand that the cartoons were no more than a humorous exaggeration of what the cartoonists believed to be [the plaintiff’s] undesirable traits.” Wecht v. PG Pub. Co., 353 Pa. Super. 493, 501 (Pa. Super. Ct. 1986).
Now that we’ve addressed Pennsylvania defamation law’s definition of defamation, the requisite seven (7) elements plaintiffs must prove in order to succeed in their claim, and several examples of defamation cases in Pennsylvania, let’s turn to what Pennsylvania libel and slander plaintiffs must plead and prove when commencing a defamation action.
Pennsylvania’s Defamation Pleading Standard
In order to understand Pennsylvania’s defamation pleading standard, you first need to understand what exactly pleadings are and the reasons why the U.S. judicial system requires them. And, we just bet if you’ve watched a legal television drama or documentary, you’ve likely heard of one of the following terms.
For starters, what are pleadings?
Think of pleadings as the mandated precursor to all legal claims and actions, as they are required formal written documents and statements which must be filed with a court stating a:
- Party’s issues,
- Case facts, &
Naturally, pleadings are first initiated by the plaintiff – think about it, why would a defendant choose to implicate his or herself for a matter? A plaintiff’s claims, facts, and issues are then responded to by the defendant, who in turn files their own set of pleadings to counter any arguments, claims, or facts.
So, what are some of the most commonly used documents in pre-trial pleadings?
- Complaint: the initial pleading filed by the plaintiff with a court, stating their fundamental claims, accusations, facts, and arguments. Additionally, complaints will contain a “prayer for relief,” which is simply a statement of the damages suffered and sought.
- Answer: the defendant’s answer, or response, to a plaintiff’s complaint, conceding or denying all claims, accusations, facts, or arguments. Furthermore, a defendant’s answer will raise any relevant defenses they may rely on in order to avoid liability.
- Reply: Oftentimes, a defendant’s answer will raise new facts, claims, or arguments, so a plaintiff will need to “reply.” A reply is simply the plaintiff’s response to a defendant’s answer.
- Counterclaim: the defendant’s assertion of any legal claims of their own against the plaintiff, which may offset a plaintiff’s initial claim.
Each U.S state has their own pleading requirements for legal actions, which can be confusing for those just getting started with their action. Therefore, we highly recommend you reach out to an experienced defamation attorney to assist you in identifying all of your relevant legal claims, arguments, and defenses, while advising you on important defamation formalities and deadlines.
With possibly the most complex and thorough judicial systems in the world, it’s extremely important to understand that most U.S. states will have varying and substantially different pleading formalities and requirements.
For example, one U.S. state may require defamation plaintiffs to bring their action within a shorter time frame (statute of limitations), while another one may have a more lenient timeframe for commencing a defamation action. Furthermore, some U.S. states may require defamation plaintiffs to plead their defamation claim with a certain level of specificity or with certain language, while another may only require a plaintiff to show the general “gist” of the defamatory statement and its impact.
So, what defamation pleading standard does Pennsylvania follow?
Pennsylvania’s defamation pleading standard requires the plaintiff to produce a concise statement of the material facts of a cause of action or defense. Pa. R.C.P. No. 1019(a).
Specifically, libel complaints must set out the defamatory language with particularity, meaning a plaintiff must include specific details in order to paint a complete picture, rather than just general statements. Gross v. United Engineers & Constructors, Inc., 224 Pa. Super. 233, 235 (Pa. Super. Ct. 1973).
Let’s now turn to several types of statements that U.S. defamation law and Pennsylvania defamation law consider so inherently defamatory and inflammatory, that a plaintiff need not prove they suffered damage. Such doctrine is referred to as “defamation per se.”
Defamation Per Se in Pennsylvania: What Types of Statements are Classified as ‘Per Se’?
Also referred to as ‘slander per se’ or ‘libel per se,’ depending on the form in which the defamatory statement is communicated, defamation per se is a legal doctrine and principle which deems several types of statements so inherently damaging and inflammatory, that a libel or slander plaintiff need not prove damages – or “special harm,” as required in Pennsylvania.
Specifically, Pennsylvania defamation law considers “Words that on their face and without the aid of extrinsic evidence are recognized as injurious are actionable per se….” Joseph v. Scranton Times L.P., 959 A.2d 322, n.23 (Pa. Super. Ct. 2008).
Furthermore, under Pennsylvania law, “words imputing a criminal offense, loathsome disease, business misconduct or serious sexual misconduct” will be considered defamatory per se. Hrishenko v. Coombs, 2014 Pa. Super. Unpub. LEXIS 880, *9 (Pa. Super. Ct. 2014).
Typically, most U.S. states recognize the above four types of statements as ‘per se’ statements and damages will be considered “presumed” where a ‘per se’ statement is found. To learn more about the various damages associated with defamation actions, check out Section 5: Pennsylvania Defamation Damages.
Defamation Per Quod: The Flip Side of the Coin
Just as defamation per se recognizes certain statements as so inherently defamatory that a plaintiff need not prove damages, defamation per quod is a legal principle which requires plaintiffs provide extrinsic and supporting evidence of the libelous or defamatory nature of the alleged statement in question.
In the case of defamation per quod, damages will not be presumed, rather a plaintiff will need to plead and prove they suffered “special damages” – addressed in Section 5: Pennsylvania Defamation Damages.
Pennsylvania defamation law eliminated the requirement that plaintiffs must prove special harm in libel per quod actions many years ago. Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 328 (Pa. Super. Ct. 1984).
However, defamation per quod in Pennsylvania requires the use of extrinsic evidence in cases the injurious nature of the words is not apparent. Joseph, 959 A.2d at n.23.
Innuendo Must Be Proved
It’s important to note that “innuendo” is the extrinsic evidence that a plaintiff is a required to prove in a defamation per quod action in Pennsylvania. Specifically, innuendo “define[s] the defamatory meaning which the plaintiff attaches to the words” and “show[s] how they come to have that meaning and how they relate to the plaintiff.” Cosgrove Studio & Camera Shop, Inc. v. Pane, 408 Pa. 314, 319 (Pa. 1962) (citations omitted).
However, “[i]f the publication complained of is not in fact libelous, it cannot be made so by an innuendo which puts an unfair and forced construction on the interpretation of the publication.” Livingston v. Murray, 417 Pa. Super. 202, 215 (Pa. Super. Ct. 1992).
What is Defamation By Implication?
Sometimes in defamation cases, defendants don’t have to explicitly communicate or publish a libelous or slanderous statement, and may hide or disguise a defamatory statement in the context of ordinary speech – ultimately leading to the legal doctrine of defamation by implication.
Under Pennsylvania defamation law, defamation by implication occurs when “true facts that in context imply a falsehood.” Dunlap v. Philadelphia Newspapers, Inc., 301 Pa. Super. 475, 491 (Pa. Super. Ct. 1982) (emphasis omitted).
The Pennsylvania Superior Court stated that “the literal accuracy of separate statements will not render a communication ‘true’ where, as here, the implication of the communication as a whole was false.” Id. at 493. Additionally, defamation by implication will occur when “the defendant juxtaposes [a] series of fact so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication….” Fanelle v. LoJack Corp., 2000 U.S. Dist. LEXIS 17767, *10 (E.D. Pa. Dec. 7, 2000).
Finally, the negligence standard will apply to defamation by implications brought by private plaintiffs, meaning the plaintiff must prove the defendant acted with ordinary negligence or outside of the scope of how a reasonable person in similar circumstances would otherwise act.Franklin Prescriptions, Inc. v. New York Times Co., 267 F. Supp. 2d 425, 441-42 (E.D. Pa. 2003).
Defamation Law Fact: In the wild world of defamation law, the U.S. is typically considered a favorable legal jurisdiction for defendants due to the First Amendment and U.S. Constitution, while European countries and other Commonwealth countries (United Kingdom, Australia, Canada) are generally considered more pro-plaintiff defamation jurisdictions.
If you’ve been the victim of online defamation or slanderous attacks, or are unsure of what exactly constitutes defamation, reach out to the defamation removal lawyers of Minc Law today by calling us at (216) 373-7706, or by filling out our contact form online.
We want to fight for your reputation.
Important Pennsylvania Defamation Law Requirements & Formalities
It should be no surprise by now that U.S. defamation law is a highly nuanced and complicated area of law, with various twists and turns, ups and downs, and requirements and formalities. In this section, we’re going to walk you through the most important requirements and formalities surrounding defamation actions in Pennsylvania. For example, we’re going to tackle:
- Whether Pennsylvania courts have jurisdiction over out-of-state defamation defendants,
- Where Pennsylvania plaintiffs can sue defendants in Pennsylvania,
- The requisite timeframe for a plaintiff to bring their defamation claim, &
- Much more.
First, let’s start by taking a look at Pennsylvania’s jurisdictional reach over out-of-state defamation defendants and persons.
Do Pennsylvania Courts Have Legal Jurisdiction Over Out-of-State Defamation Defendants?
At its most basic, yes. However, there are several important requirements and elements that must apply for jurisdictional reach to apply.
Specifically, Pennsylvania’s long-arm statute enables Pennsylvania courts to exercise jurisdiction over out-of-state defendants that cause a tortious injury in the state, or commit a tortious act within the state (of Pennsylvania). 42 Pa.C.S. § 5322(3-4).
In determining whether personal jurisdiction exists over out-of-state defendants, Pennsylvania courts apply the Calder effects test. Scott v. Lackey, 2012 U.S. Dist. LEXIS 88937, *8 (M.D. Pa. June 27, 2012). The Calder effects test contains three elements:
- [T]he defendant committed an intentional tort
- [T]he plaintiff felt the brunt of the harm in the forum such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of the tort
- [T]he defendant expressly aimed his tortious conduct at the forum such that the forum can be said to be the focal point of the tortious activity.” Id. (citations omitted)
Note that a website being accessed in Pennsylvania alone will not support general jurisdiction. This is an important rule to understand for online defamation claims in Pennsylvania. Streamline Bus. Servs., LLC v. Vidible, Inc., 2014 U.S. Dist. LEXIS 118657, *16 (E.D. Pa. Aug. 26, 2014).
If you’re unsure of whether Pennsylvania courts have personal jurisdiction over out-of-state defendants or you’ve been defamed online, we strongly urge you to reach out to an experienced defamation removal lawyer today! Doing so will not only save you time, but stress.
Now that we know when Pennsylvania courts may exercise legal jurisdiction over out-of-state defamation defendants, let’s now turn to where, and in which venue, a defamation plaintiff may commence their action.
Where Can I Sue a Defamation Defendant in Pennsylvania?
Venue will be proper in the county “the individual may be served or in which the cause of action arose or where the transaction or occurrence took place out of which the cause of action arose or in any other county authorized by law.” Pa. R.C.P. No. 1006(a)(1).
Simply put, Pennsylvania defamation plaintiffs may sue a libel or slander defendant where:
- The cause of action arose
- The transaction or occurrence took place
- In any other county authorized by law
Libel Removal Fact: When confronting online libel and defamation, it’s important to document everything. Make sure to screenshot all offending material and the search results in which it shows up. Also, we strongly recommend having a loved one or friend screenshot the offensive material as to provide third-party support for your defamation claim. Having a third-party assist you in the documentation process will help refute claims of tampering with the evidence by the opposing party.
As noted in Section 1, it’s extremely important to identify the form in which the defamatory statement in question is conveyed, as it may have serious implications for your filing deadline and requirements. Now, we’re going to turn to Pennsylvania’s statute of limitations for bringing a defamation of character claim.
Pennsylvania’s Defamation Statute of Limitations
For those unfamiliar with what a statute of limitations, it’s simply a time constraint placed on a claim, and requires a plaintiff to bring their legal action within a certain period of time. Should they fail to commence or initiate their action within their state’s requisite time period, they’ll likely be barred or prevented from bringing their claim altogether – or if they are allowed to initiate their claim, there’s a higher likelihood it may be dismissed.
So, why does the U.S. legal system place a statute of limitations over claims?
There’s several core reasons behind the creation and enforcement of statutes of limitations for legal actions in the U.S., including:
- Reasonable Diligence: Statutes of limitations exist to prevent plaintiffs from bringing legal actions and claims years after the cause of action accrued. Our legal system is already clogged as is, therefore we sometimes cannot be opening claims up that should have been brought with reasonable diligence.
- Preservation of Evidence: Evidence may be fleeting in certain situations, and the longer a plaintiff waits to commence their legal action, the less likely certain evidence may still be available. It’s not unheard of for companies or other individuals to dispose of important documents after several years, or lose it altogether.
- To Eliminate More “Cruelty Than Justice”: At its most basic, a statute of limitations provides defendants with proper notice and time to prepare their case, arguments, and evidence, which ultimately eliminates more “cruelty than justice.”
What’s the time frame for bringing a defamation action in the state of Pennsylvania?
In Pennsylvania, defamation actions have a one-year statute of limitations period. 42 Pa.C.S. § 5523(1).
Affecting a plaintiff’s ability to bring a defamation claim in most states is the “single publication rule.”
How Does the Single Publication Rule Affect Pennsylvania’s Statute of Limitations?
The single publication rule is a legal principle which ultimately limits the number of defamation claims a plaintiff can bring against a party for a single publication. That’s right, one mass publication of a defamatory statement will only warrant one legal action. Limiting such keeps unnecessary cases out of our already bogged down legal system and protects defendants from excessive liability for a statement or publication.
Pennsylvania follows the single publication rule. 42 Pa.C.S. § 8341. And, under Pennsylvania’s single publication rule, “the plaintiff may choose any publication as the single publication which represents his single cause of action.” Dominiak v. National Enquirer, 439 Pa. 222, 227 (Pa. 1970).
In other words, the statute of limitations does not begin tolling upon the first publication in Pennsylvania, instead the plaintiff may choose the publication to base his or her action on and toll the statute of limitations period.
The Third Circuit ruled on the single publication rule in the context Internet publications, finding that the single publication rule DID in fact apply to Internet publications. In re Phila. Newspapers, LLC, 690 F.3d 161, 174 (3d Cir. 2012).
Online Defamation Removal Fact: Keep in mind that most ISPs and user-generated content platforms (UGCs) are protected from defamation liability under Section 230 of the Communications Decency Act, a landmark piece of legislation shifting the liability to the users and creators of the content.
Let’s take a look at how Pennsylvania’s defamation statute of limitations compares to several other states:
|Pennsylvania||One (1) year|
|Arizona||One (1) year|
|District of Columbia (Washington, D.C.)||One (1) year|
|Ohio||One (1) year|
|Texas||One (1) year|
|Georgia||One (1) year|
|Illinois||One (1) year|
|California||One (1) year|
|South Carolina||Two (2) years|
|Florida||Two (2) years|
|New Hampshire||Three (3) years|
|Massachusetts||Three (3) years|
As shown above, most states will have their respective statute of limitations for slander and libel claims. It’s not a one-size-fits-all time period for defamation claims, and it’s extremely important you remain vigilant and reach out to an experienced United States defamation attorney to advise you on your state’s defamation statute of limitations.
If you’ve been the victim of online defamation or other slanderous and malicious attacks, the defamation removal lawyers of Minc Law are here to fight for your reputation.
At Minc Law, we’ve removed over 25,000 pieces of defamatory and false content from websites and online forums, and boast a nearly 100% online defamation removal rate. When working with the nationally recognized defamation lawyers of Minc Law, know that you’re in good hands.
Public vs. Private Defamation Plaintiffs: Which One Are You?
In the realm of United States defamation law, it’s essential to understand that a plaintiff’s societal and public status will have a substantial impact on their rights and remedies. Specifically, United States law draws two distinctions for persons lodging defamation claims: private and public plaintiffs and figures.
In this section, we’re going to address the history and cases driving the core differences and policies behind public and private plaintiffs. And, we think for a select few reading this, you might just be surprised to learn which type of plaintiff you fall under.
So, why does United States’ defamation law choose to distinguish between private and public figures?
In the 1964 case of New York Times Co. v. Sullivan, the United States Supreme Court laid the foundation and fundamental skeleton for modern day defamation law as we know it. Specifically, the Supreme Court determined a substantial need to differentiate between both public and private figures when deciding defamation claims, in order to promote “uninhibited debate of public issues.” Think about it, our democracy thrives on the ability to open discuss hot topic and contentious issues, and without the distinction between public and private figures and differing burdens of proof, the general public would live in fear of being sued for discussing such things.
Furthermore, why should we punish persons or avail them to higher levels of public comment and scrutiny if they never chose to pursue a career or lifestyle in the public light?
Below are the major differences between private and public plaintiffs in United States defamation law and their respective burdens of proof which need to be met in order to succeed in their claim:
- Private Plaintiffs: Most of you reading this will fall under the category of “private plaintiff,” as you haven’t voluntarily or involuntarily availed yourself through action to heighten public scrutiny, comment, or criticism. And, due to the fact that private plaintiffs have not voluntarily or involuntarily availed themselves to being the topic of public discussion, there burden of proof is much lower to meet in order to succeed in their defamation claim. In order to succeed in a defamation action, private plaintiffs must prove the defendant acted with ordinary negligence when communicating the defamatory statement in question.
- Public Plaintiffs: Think of celebrities, politicians, and other notable figures in the public eye. Such people have voluntarily or involuntarily availed themselves to public scrutiny , comment, and criticism, and it is in society’s best interest to be informed of their standing and actions. For public plaintiffs to succeed in a defamation action, they must prove the defendant acted with actual malice or reckless disregard when communicating the defamatory statement.
Pennsylvania defamation law’s classifications of public and private figures follows the Supreme Court ruling set forth in the landmark case of Gertz v. Robert Welch, Inc., and divides public figures and plaintiffs into two core types: all-purpose public figures and limited-purpose public figures. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). Am. Future Sys., Inc. v. Better Bus. Bureau, 592 Pa. 66, 86 (Pa. 2007).
Per the Gertz standard, public figure plaintiffs face different burdens of proof to establish a prima facie case for defamation of character, depending on whether the plaintiff is a limited-purpose public figure or all-purpose public figure (or better known as a general-purpose public figure). Ultimately, Pennsylvania (like most other U.S. states) recognizes four (4) types of defamation plaintiffs:
- Private Plaintiffs
- Public Officials
- All-Purpose Public Figures
- Limited-Purpose Public Figures
Below is a table comparing and contrasting the similarities and differences between the four core types of defamation plaintiffs in Pennsylvania and several explanatory case examples.
|Arizonas’s Four Types of Defamation Plaintiffs||Private Plaintiffs||Public Officials||All-Purpose Public Figures||Limited-Purpose Public Figures (LPPFs)|
|Definition||All other plaintiffs who are not described in one of the other three categories are considered “private individuals” and private plaintiffs.||Public Officials are defined under Pennsylvania defamation law as those in the “hierarchy of government who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.” Rusack v. Harsha, 470 F. Supp. 285, 298 (M.D. Pa. 1978) (citations omitted).||All-Purpose Public Figures are persons who have “assumed roles of especial prominence in the affairs of society” or “have attained positions of such pervasive power and influence that they are deemed public figures for all purposes.” Rutt v. Bethlehems’ Globe Pub. Co., 335 Pa. Super. 163, 178 (Pa. Super. Ct. 1984) (citations omitted).).||A Limited-Purpose Public Figure is someone who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” Am. Future Sys., Inc., 592 Pa. at 86 (citations omitted). Pennsylvania also recognizes that persons are Limited-Purpose Public Figures for controversies they create, if the defamation relates to the controversy. Id. at 90.|
|Burden of Proof||Ordinary Negligence – Private Plaintiffs’ burdens of proof do not rise to the “malice” level.||Actual Malice – This will generally apply to all matters (both private and public).||Actual Malice – In all defamation cases, All-Purpose Public Figures must establish that the defendant acted with actual malice.||Actual Malice – However, a Limited-Purpose Public Figure must only establish that the defendant possessed actual malice for defamation actions that concern the public controversy that gained the individual his Limited-Purpose Public Figure Status.|
|Examples||An individual engaging in fundraising activities for a charity is a private individual under Pennsylvania defamation law. Hanish v. Westinghouse Broadcasting Co., 487 F. Supp. 397, 403 (E.D. Pa. 1980).||A candidate for a becoming a judge was ruled to be a public official in Pennsylvania. Kubert v. Philadelphia Bar Asso., 1974 Pa. Dist. & Cnty. Dec. LEXIS 204, *3 (Pa. C.P. 1974).||All-Purpose Public Figures are usually celebrities, politicians, and other notable figures in the community and public eye that have pervasive influence in society.||A community member with multiple commercial real estate ventures entrenched in legal disputes was ruled to be a Limited-Purpose Public Figure for purposes of a newspaper article surrounding the disputes. Mendelson v. Morning Call, Inc., 2007 Pa. Dist. & Cnty. Dec. LEXIS 256, *17 (Pa. C.P. 2007). A Playboy model was considered to be a Limited-Purpose Public with regard to her role in Playboy magazine. Vitale v. National Lampoon, 449 F. Supp. 442, 445 (E.D. Pa. 1978).|
Defamation Removal Fact: Once again, it’s extremely important to understand the difference between libel and slander, as it may affect your legal rights and ability to bring a claim altogether.
Continuing on with the notion that the law should be distinguishing between private and public figures for the purposes of open debate and democratic advancement, we’re now going to tackle issues of private and public concern – which also both have their own burdens of proof that must be met.
What are Considered Issues of Private & Public Concern in Pennsylvania?
Similar to how private and public figures have differing burdens of proof they must meet in order to succeed in their defamation claims, issues of private and public concern both have their own respective burdens.
So, what’s the reason?
Well, it’s very similar to the reasons why we differentiate between private and public figures, to promote uninhibited debate and comment on important matters (while protecting matters that have no right to be in the public light). Should we ultimately fail to distinguish between the two, our news media, news stations, and other journalistic organizations would suffer, as they would no longer be able to openly discuss important issues affecting the American public.
Furthermore, private persons who have no interest in having their affairs and life broadcast to the world would fall prey to public attacks and discussions.
For example, similar to how statements made about public figures require a showing of actual malice or disregard, issues of public concern also should be discussed without fear of legal repercussions, thus it generally has the same burden of proof. And, with statements regarding issues of private concern, plaintiffs generally only need to prove the defendant communicated or published their statement with ordinary negligence.
Pennsylvania has adopted a negligence standard for private figure plaintiff lawsuits regarding issues of private concern. Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997).
Pennsylvania courts formerly applied an actual malice standard to defamation claims brought by private plaintiffs regarding issues of public concern. Matus v. Triangle Publications, Inc., 445 Pa. 384, 395 (Pa. 1971). Today, the Pennsylvania Supreme Court has seemingly abolished that rule and shifted the inquiry to whether a plaintiff is a private individual or a public figure or public official. Am. Future Sys., Inc. v. Better Bus. Bureau, 592 Pa. 66, 82-83 (Pa. 2007).
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If you’ve been the victim of online defamation or are unsure of whether a piece of offensive content is considered defamation in your state or a matter of public or private concern, reach out to an experienced defamation removal lawyer today!
Now that we’ve addressed all the required elements for formulating and commencing a defamation of character action in the state of Pennsylvania, let’s take a look at the numerous defenses which defendants may rely on in order to avoid defamation liability.
Common Defenses to Pennsylvania Libel & Slander Claims
In the world of United States and Pennsylvania defamation law, there are countless defenses a defendant may rely on when confronted with a libel or slander claim.
In this section, we’re tackling some of the most popular defenses to the tort of defamation in Pennsylvania and the United States.
- Privilege (Absolute, Qualified, Fair Report, Neutral Report, Statutory)
- Wire Service Defense
- Section 230 of the CDA
- Libel-Proof Plaintiff Doctrine
- Incremental Harm Doctrine
First, let’s start with possible the most commonly used defense to a defamation of character action in the state of Pennsylvania and United States – the defense of opinion.
Opinion: Is it Verifiable as Fact?
At the crux of defamation’s definition is the communication of a false assertion of fact, meaning that the contents of such statement may independently be proved true or false. If a statement is verifiable as fact, then it may give rise to a defamation claim. However, if a statement is unable to be verified as fact, then a defendant may likely rely on the defense of opinion, protecting them from liability under United States and Pennsylvania defamation law.
Under Pennsylvania defamation law, opinion statements do not create a cause of action for defamation. Baker v. Lafayette College, 516 Pa. 291, 297 (Pa. 1987).
However, opinion will be actionable if it “impl[ies] the existence of undisclosed defamatory facts justifying the opinion.” Id. Pennsylvania law distinguished between non-actionable “pure opinion” and potentially actionable “mixed opinion” statements.
- Pure Opinion Statements: statements of opinion which are based on disclosed or assumed non defamatory facts.
- Mixed Opinion Statements: statements of opinion which are “not based on disclosed or assumed facts and therefore implies that there are undisclosed facts on which the opinion is based.” Feldman v. Lafayette Green Condo. Ass’n, 806 A.2d 497, 501 (Pa. Commw. Ct. 2002).
To help better understand the defense of opinion in Pennsylvania, let’s take a look at several Pennsylvania defamation cases addressing what does and does not constitute actionable opinion.
Opinion Cases in Pennsylvania
- Child molestation: A poster on an online forum posted a photo of a community member and said that he looked like someone accused of child molestation and also called the community member a pervert. The court held that the forum postings contained no factual assertions and therefore, the postings were non-actionable pure opinion. Purcell v. Ewing, 560 F. Supp. 2d 337, 342 (M.D. Pa. 2008).
- Employee/CEO email: An email from an employee to the CEO of a company which read, “[i]f he wants to talk about integrity, I would encourage him to be honest enough to tell you the full true story,” and “he [Donaldson knows that I [Hoffman] know the facts.” The court found that these statements imply the existence of undisclosed defamatory facts; therefore, the email is actionable mixed opinion. Donaldson v. Informatica Corp., 2009 U.S. Dist. LEXIS 15528, *13 (W.D. Pa. Feb. 25, 2009).
- Harassment: A letter stating that a resident had engaged in harassment was not considered defamatory as a matter of law because the letter included a description of a confrontation which formed the basis for the opinion. Feldman, 806 A.2d at 502.
- Chiropractor fees: A letter criticizing a chiropractor for fee practices which ultimately concluded, “which at least for us were ineffective and possibly harmful,” amounted to mixed opinion because the letter implied the existence of undisclosed facts. Dougherty v. Boyertown Times, 377 Pa. Super. 462, 478-79 (Pa. Super. Ct. 1988).
Truth/Falsity Defense: Is the Gist of the Statement True?
As mentioned above, for a statement to be actionable under United States and Pennsylvania defamation law, it must be verifiable as fact and be independently proved as true or false. Keep in mind also that while the truth may hurt your feelings, that doesn’t mean it gives rise to a defamation of character claim or action.
Under Pennsylvania law, truth operates as a complete defense to defamation claims. Hatchard v. Westinghouse Broadcasting Co., 516 Pa. 184, 194 (Pa. 1987).
Pennsylvania also applies the substantial truth doctrine, which protects statements that are not completely true, “so long as any inaccuracies do not render the substance and ‘gist’ of the statements untrue.” 42 Pa.C.S. § 8342. ToDay’s Hous. v. Times Shamrock Communs., Inc., 21 A.3d 1209, 1215 (Pa. Super. Ct. 2011).
So, how do Pennsylvania courts determine whether a statement is substantially true or not?
The Test For Substantial Truth in Pennsylvania
Under Pennsylvania defamation law, the test for substantial truth is “whether the [alleged] libel as published would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Dunlap v. Philadelphia Newspapers, Inc., 448 A.2d 6, 15 (Pa. Super. Ct. 1982) (citations omitted).
Furthermore, a truth defense raised in bad faith may be considered in aggravation of damages. We’ll address the various damages associated with defamation of character claims in Section 5: Pennsylvania Defamation Damages. Corabi v. Curtis Pub. Co., 273 A.2d 899, 911 (Pa. 1971).
Let’s take a look at several examples in Pennsylvania where the court ruled on whether the matter at hand was true or substantially true.
- An employment termination letter that stated that the employee was terminated for theft of petty cash was substantially true in light of the fact that the employee was actually terminated for a fraudulent act with a petty cash voucher. Keeshan v. Home Depot, U.S.A., Inc., 2001 U.S. Dist. LEXIS 3607, *55-56 (E.D. Pa. Mar. 27, 2001).
- An article that stated the plaintiff pled guilty to one drug offense, when in fact he was convicted by a jury of a different drug offense was not ruled to be defamatory in Pennsylvania. Hojnowski v. Reading Eagle Co. Corporate Admin., 2007 Pa. Dist. & Cnty. Dec. LEXIS 205, *6-7 (Pa. County Ct. 2007).
- A newspaper article stating that the plaintiff his a pedestrian walking on the road, when in reality the plaintiff actually struck a pedestrian lying in the road was not considered materially false. Kwak v. Ottaway Newspaper, Inc., 2008 Pa. Dist. & Cnty. Dec. LEXIS 149, *7 (Pa. County Ct. 2008).
What is Legal Privilege? What Types of Statements Does Pennsylvania Consider Privileged?
Take privilege at face value, as it refers to a person’s legal right to publish or communicate a certain type of statement, to a specific audience, and at a certain time. Specifically, privilege is a person’s legal enjoyment or entitlement to communicate statements, even if they are defamatory.
As it has been a common theme through this blog post, the United States legal system is founded on the principle of free speech and furthering an informed and educated democracy. Privilege is a legal principle which furthers such goals, as without it, our democracy would fail to keep up with the quickly changing times, and our fundamental rights as we know them today, may ultimately cease to exist without it. Simply put, privilege is the key that unlocks a party’s right to broadcast or publish a statement, a statement which ultimately may affect legal, social, financial, or political policy, and your future.
In this section, we’re tackling the most common legal privileged relied on by defamation defendants and persons in the state of Pennsylvania and United States. Below are several of the most common privileges relied upon:
- Fair Report,
- Neutral Report, &
- Statutory Report.
Absolute Privilege: The Most Comprehensive Form of Privilege
Think of absolute privilege as the apex form of legal privilege, as it refers to a person or party’s unconditional legal right, enjoyment, or entitlement to communicate or publish a defamatory statement. Absolute privilege is all-encompassing, meaning that it also applies to statements which are communicated with actual malice or disregard as well.
So, when is absolute privilege usually granted to persons?
Due to the absolute and all-encompassing nature of absolute privilege, it is typically granted in situations involving our fundamental decision making processes, such as in legislative, judicial, or administrative proceedings. After all, it’s essential for say a legislator or judge to speak openly in order to further policy and law. In order to draft comprehensive policies and laws, both sides of the coin must be presented and considered.
Below are several situations where Pennsylvania law grants persons absolute privilege:
Communications made in the regular course of judicial proceedings will be privileged against defamation claims in Pennsylvania. Bochetto v. Gibson, 580 Pa. 245, 251 (Pa. 2004).
Additionally, in order for the privilege to attach, the communication must be pertinent and material to the judicial proceedings. Post v. Mendel, 510 Pa. 213, 223 (Pa. 1986).
Judicial proceedings privilege will also extend to pleadings. Schanne v. Addis, 2015 Pa. LEXIS 1780, *13 (Pa. Aug. 17, 2015). Additionally, less formal communications, such as preliminary conferences and correspondence between counsel will be privileged under Pennsylvania’s judicial proceedings privilege. Pawlowski, 403 Pa. Super. at 81.
Furthermore, the privilege will extend to communications made to law enforcement for the purpose of initiating criminal charges. Id. And finally, witnesses will be protected by the judicial proceedings immunity as well. Schanne, 2015 Pa. LEXIS 1780, at *13.
So, how do parties lose privilege in judicial proceedings?
If the defamatory material is published to unauthorized persons, then the privilege may be lost under Pennsylvania law. Pawlowski v. Smorto, 403 Pa. Super. 71, n.3 (Pa. Super. Ct. 1991).
Below are three key cases where a Pennsylvania court ruled on whether judicial proceedings privilege should be extended:
- Judicial privilege did not extend to a letter written by an attorney accusing the opposing counsel of unethical behavior during trial. Post v. Mendel, 510 Pa. 213, 223-24 (Pa. 1986).
- A public defender’s comments about a case during a press conference were not protected. Barto v. Felix, 378 A.2d 927, 930 (Pa. Super. Ct. 1977).
- Communications between opposing counsel regarding discovery were determined to be absolutely privileged. Richmond v. McHale, 35 A.3d 779, 786 (Pa. Super. Ct. 2012).
Similar to judicial proceedings privilege, Pennsylvania law recognizes an absolute privilege for communications made during quasi-judicial proceedings. Schanne v. Addis, 2015 Pa. LEXIS 1780, *17 (Pa. Aug. 17, 2015). However, such privilege does not extend to communications made prior to the initiation of quasi-judicial proceedings and communications made without an intent to commence quasi-judicial proceedings. Id at *25.
Specifically, Pennsylvania defines a quasi-judicial hearing as “[a] hearing before a tribunal which performs a judicial function, ‘including many administrative officers, boards and commissions, so far as they have the powers of discretion in applying the law to the facts…’” Day v. Borough of Carlisle, 2006 U.S. Dist. LEXIS 46434, *43 (M.D. Pa. July 10, 2006) (citations omitted).
High Public Officials
High public officials will receive an absolute privilege from defamation actions under Pennsylvania law. Lindner v. Mollan, 544 Pa. 487, 490 (Pa. 1996).
However, such immunity will only extend to acts within the high public official’s official duties and within the scope of his or her authority.
In determining whether someone is a high public official, courts consider “the nature of his duties, the importance of his office, and particularly whether or not he has policy-making functions.” Id. at 495. Lamb Found. v. N. Wales Borough, 2001 U.S. Dist. LEXIS 18797, *34 (E.D. Pa. Nov. 16, 2001).
Below are two examples where a Pennsylvania court ruled on whether someone was a high public official.
- A school board director was sufficiently important enough and possessed enough discretionary authority to constitute a high public official in a 1998 Pennsylvania defamation case. Matta v. Burton, 721 A.2d 1164, 1166 (Pa. Commw. Ct. 1998).
- The chairman of a housing agency was considered a high public official. Greene v. Street, 2011 Phila. Ct. Com. Pl. LEXIS 209, *9 (Pa. C.P. 2011).
Think about it, if you consent to a defamatory statement being communicated or published about you, you can’t later go back on your word and agreement and attempt to hold someone liable for defamation.
Under Pennsylvania law, publications that are consented to are privileged against defamation claims. Baker v. Lafayette College, 350 Pa. Super. 68, 74 (Pa. Super. Ct. 1986).
Note that the consent privilege does not extend to the republication to unauthorized parties. Also, it is common in consent-based defamation cases for a party to have given consent to a specific type of statement. Bethel v. McAllister Bros., 1993 U.S. Dist. LEXIS 4243, *18 (E.D. Pa. Mar. 30, 1993), rev’d, 19 F.3d 642 (3d. Cir. 1994). However, when a defendant publishes a defamatory statement which exceeds the scope of the consent and agreement, then a plaintiff may have an actionable claim for defamation.
Below are two Pennsylvania defamation cases addressing consent:
- A letter explaining the reasons for an employee’s termination issued pursuant to a collective bargaining agreement was absolutely privileged in Pennsylvania. De Luca v. Reader, 227 Pa. Super. 392, 400 (Pa. Super. Ct. 1974).
- A professor’s evaluations were privileged because he consented to their publication. Baker, 350 Pa. Super. at 72.
Employee Termination Notices
Pennsylvania law provides employers with an absolute privilege to publish defamation in termination notices. Agriss v. Roadway Express, Inc., 334 Pa. Super. 295, 310 (Pa. Super. Ct. 1984).
Other individuals signing the letter of termination do not defeat the privilege, as long as those individuals share a common interest. Davis v. Res. for Human Dev., 2001 PA Super 73, P6 (Pa. Super. Ct. 2001).
Qualified Privilege: A Watered Down Version of Absolute Privilege
Think of qualified privilege as absolute privilege’s younger brother or sister, as it is not all-encompassing, and attaches in far fewer situations and circumstances. Commonly referred to as “Common Interest Privilege,” qualified privilege is a person’s legal right, joy, or entitlement to communicate or publish a certain type of statement to a specific audience. Oftentimes in cases of qualified privilege, the audience must have a reciprocal interest in hearing such statement communicated by the person.
Generally, qualified privilege is granted to parties who hold positions of authority and trust, and have a social, legal, or moral duty to further and promote policy.
What separates qualified privilege from its older sibling, absolute privilege, is that it does not attach in situations where a party communicated or published a statement with actual malice or disregard.
Pennsylvania has not enumerated a list of qualified privileges, and instead, they apply a general rule. A qualified privilege will exist “when a recognized interest of the public is involved.” Moore v. Cobb-Nettleton, 2005 PA Super 426, P7 (Pa. Super. Ct. 2005).
Additionally, qualified privileges “arise when the communication involves an interest of the publisher, the recipient, a third party or the public.” Johnson v. Resources for Human Dev., 860 F. Supp. 218, 222 (E.D. Pa. 1994) (citations omitted).
4 Cases of Qualified Privilege in Pennsylvania
- A borough’s letter regarding the qualifications of the firefighters received a conditional privilege in Pennsylvania. Smith v. Borough of Dunmore, 2007 U.S. Dist. LEXIS 21396, *31 (M.D. Pa. Mar. 7, 2007).
- An employee’s supervisor discussing the employee’s altered time card with the payroll department was conditionally privileged because the payroll department shared a common interest and responsibility in the employee’s time card. Daywalt v. Montgomery Hosp., 393 Pa. Super. 118, 124 (Pa. Super. Ct. 1990).
- A student informing the College Honor Board of another student cheating during an exam received a qualified privilege because the student fulfilled her obligation under the school’s Honor Code. Vargo v. Hunt, 398 Pa. Super. 600, 606 (Pa. Super. Ct. 1990).
- A social worker’s report regarding possible sexual abuse suffered from a mentally handicapped woman was protected by a qualified privilege because of the public interest in the matter. Moore, 889 A.2d at 1269.
Fair Report Privilege & Official Proceedings
Enacted as a safeguard for persons and organizations who rely on government and official documents and reports, and later publish them, fair report privilege is essential for a thriving news media. After all, how would the public be alerted of important policy and legal updates should news organizations fear legal repercussions for republishing them.
Simply put, fair report privilege exists to promote trust in our government and decision making processes and reports. If you can’t trust a government report and have to worry about being sued for discussing or republishing it, then what type of society would we live in?
The Pennsylvania Supreme Court adopted the fair report privilege, stating, “[i]f the newspaper account is fair, accurate and complete, and not published solely for the purpose of causing harm to the person defamed, it is privileged and no responsibility attaches, even though information contained therein is false or inaccurate.” Sciandra v. Lynett, 409 Pa. 595, 600 (Pa. 1963).
Such privilege will also apply to summaries which are substantially true or substantially accurate. Id.
Furthermore, keep in mind if a person or organization takes such report or document and then materially alters it in any way, then it likely won’t be privileged under fair report privilege.
Neutral Report Privilege & Defamation Republication
Also referred to as “Neutral Reportage,” neutral report privilege tackles the issues surrounding republication of libelous and defamatory material. The rule of republication states that parties who republish defamatory and libelous statements will be equally as liable as the original publisher or author for the defamation.
So, what’s the reason behind neutral reportage?
News organizations, media organizations, and journalists are frequently on the battlefield reporting about hot topic and highly contentious issues, some issues involving heated “back and forths” between public figures and politicians. Shouldn’t the general public have the right to hear such communications made by say two notable figures or politicians running for president? Neutral report privilege thinks so, and allows organizations and persons to republish otherwise defamatory statements made by one party about another.
In Pennsylvania, the Pennsylvania Supreme Court has expressly refused to recognize the neutral report privilege. Norton v. Glenn, 580 Pa. 212, 229 (Pa. 2004).
Statutory Report Privilege: Privilege Codified by Law
Statutory privilege simply refers to statements protected by law, and codified in state laws.
Pennsylvania officials and employees acting within the scope of their duties will enjoy immunity from lawsuits under Pennsylvania statutory report privilege. 1 Pa.C.S. § 2310.
Defamation Law Tip: In some countries and jurisdictions, defamation is considered a crime, rather than a tort or civil wrong. However, in 2012, the United Nations Human Rights Committee ruled that the libel law in place in the Philippines was incompatible with Article 19 of the International Covenant on Civil and Political Rights, and urged states to the covenant to reflect on decriminalizing libel.
Let’s recap and clear up any confusion surrounding the differences between the above five privileges. Below is a comparison table of all five, with their definitions and several examples of each.
|Type||Absolute||Qualified||Fair Report||Neutral Reportage||Statutory Report|
|Definition||An all-encompassing form of privilege granting persons the legal right, joy, or entitlement to communicate or publish a defamatory statement.||A form of privilege attaching in fewer circumstances than absolute privilege, enabling persons in positions of authority and trust to publish or communicate a specific type of statement to a certain audience. Furthermore, such audience generally has a reciprocal interest in hearing such statements.||A privilege granted to persons or organizations who publish fair, accurate and complete accounts of information.||A form of privilege enabling persons or organizations to republish false and defamatory communications made between public and notable figures about one another.||Certain privileges which are codified by law.|
|Can it be defeated?||No – a person may not be held liable even if it is found they communicated the statement with actual malice or reckless disregard.||Yes – a person may be held liable for defamation if they communicate or publish a statement with actual malice or reckless disregard.||Yes – fair report privilege may be defeated in cases where the information is published with the sole purpose of causing harm to the person defamed.||N/A||N/A|
|Examples||Judicial proceedings, quasi-judicial proceedings, high public officials, consent, employee termination notices.||Qualified privilege will apply under Pennsylvania law when a recognized interest of the public is involved.||Newspaper publications of fair, accurate, and complete accounts.||There are no cases involving neutral report privilege in Pennsylvania, as the Pennsylvania Supreme Court has expressly refused to recognize it.||Pennsylvania officials and employees acting within the scope of their duties will enjoy privilege and immunity from lawsuits under Pennsylvania statute.|
Wire Service Defense: A Bit Outdated, But Never Forgotten
An old, but not forgotten, defense to libel and slander claims is the wire service defense. The wire service defenses enables news and media organizations to publish information and communications received via a reputable wire service and from a reputable news service.
No Pennsylvania court has recognized the wire service defense, and several courts have actually rejected its application to Pennsylvania law. Friedman v. Isr. Labour Party, 957 F. Supp. 701, n.21 (E.D. Pa. 1997).
Section 230 of the Communications Decency Act
Pennsylvania law provides complete immunity for both ISPs and websites under 47 USCS § 230, also known as Section 230 of the Communications Decency Act (CDA), for libelous and defamatory material posted.
Furthermore, websites will receive complete immunity in cases where defamatory and libelous material is posted to their website, and they refuse to remove it. Supplementmarket.com, Inc. v. Google, Inc., 2010 Pa. Dist. & Cnty. Dec. LEXIS 538, *23 (Pa. County Ct. 2010).
Libel-Proof Plaintiff Doctrine: You Can’t Harm a Reputation Widely Loathed
Imagine a plaintiff with such a poor reputation that the publication or dissemination of a defamatory statement doesn’t even do damage to their reputation. Welcome to the defense of the libel-proof plaintiff. Furthermore, the libel-proof plaintiff doctrine will apply where the defamatory communication or publication causes miniscule or minimal damage.
Typically, U.S. state courts have ruled on several types of parties as constituting libel-proof plaintiffs, such as criminals or drug abusers in small communities.
Pennsylvania courts have neither officially adopted nor rejected the libel-proof plaintiff doctrine. Several Pennsylvania courts have actually even recognized the doctrine’s application to Pennsylvania law and applied such doctrine. Griffin v. Griffin, 2008 Phila. Ct. Com. Pl. LEXIS 300, n.1 (Pa. C.P. 2008); Istrefi v. Pocono Record Newspaper, 2004 U.S. Dist. LEXIS 31776, *7 (M.D. Pa. Feb. 26, 2004) (applying the Libel-Proof Plaintiff Doctrine to Pennsylvania law).
However, the Pennsylvania Supreme Court has implied that a plaintiff’s reputation should only be an issue for damages. Corabi v. Curtis Pub. Co., 273 A.2d 899, 920 (Pa. 1971).
Finally, the Third Circuit explicitly refused to acknowledge that the libel-proof plaintiff doctrine is a good law in Pennsylvania, so this is still a defense where the jury is out. Wallace v. Media News Group, Inc., 568 Fed. Appx. 121, 125 (3d Cir. 2014) (refusing to apply the Libel-Proof Plaintiff Doctrine).
Incremental Harm Doctrine
Possibly to be confused with the libel-proof plaintiff doctrine, the incremental harm doctrine will apply where the alleged defamation causes no significant harm or damage to the plaintiff’s reputation.
Pennsylvania has yet to adopt the incremental harm doctrine, and the closest it has come was in 1997 when a Pennsylvania court declined to apply the incremental harm doctrine to Pennsylvania law. Wilson v. Slatalla, 970 F. Supp. 405, n.7 (E.D. Pa. 1997).
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Pennsylvania Defamation Damages
As noted under Section 1, in order for a libel or slander plaintiff to succeed in their defamation claim, they must prove special harm or damages. Specifically, damages are awards granted to a plaintiff in order to reimburse or compensate them for damage and injury due to a defamatory statement. It’s worth noting that damages are typically quantified in monetary form.
In the state of Pennsylvania, defamation damages can be divided into four (4) core types:
- Presumed Damages,
- Special Damages,
- Actual Damages, &
- Punitive Damages.
Presumed Damages & Defamation Per Se
As mentioned in Section 1, presumed damages are associated with the legal principle of defamation per se, and will be granted in situations where a defendant has communicated or published a statement so inherently defamatory, that the plaintiff need not prove damages.
In Pennsylvania, the law on presumed damages remains unclear to this day.
One court has upheld the validity of presumed damages in cases where the defendant acted with actual malice.
Furthermore,in defamation per se cases under Pennsylvania defamation law, plaintiffs may not collected presumed damages, but instead may only receive damages for proven harm. Walker v. Grand Cent. Sanitation, 430 Pa. Super. 236, 250 (Pa. Super. Ct. 1993); Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000).
Today, the availability of presumed damages for Pennsylvania plaintiffs in actual malice defamation cases is uncertain. The Third Circuit has analyzed the issue, but ultimately has not decided whether presumed damages still exist for actual malice plaintiffs. Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 342 (3d Cir. Pa. 2005).
And, after a recent court upheld the application of presumed damages to actual malice cases, the Pennsylvania Supreme Court granted an appeal to consider the issue. Joseph v. Scranton Times, L.P., 2014 PA Super 49, 89 A.3d 251, 272 (Pa. Super. Ct. 2014), appeal granted, 105 A.3d 655 (Pa. 2014).
The point is, this is still a relatively unclear area of law under Pennsylvania defamation law, therefore we strongly recommend you consult with an experienced defamation attorney to learn more about it.
Special Damages & Libel/Slander Per Quod
Just as presumed damages are typically associated with the legal doctrine of defamation per se in some states, special damages are associated with the principle of defamation per quod (also known as libel or slander per quod).
Typically, to recover special damages, plaintiffs must provide supporting and extraneous evidence to prove the defamatory nature of the allegedly defamatory statement.
Under Pennsylvania law, libel plaintiffs are not required to prove special damages. Joseph v. Scranton Times L.P., 2008 PA Super 217, P64 (Pa. Super. Ct. 2008); Thornton v. UL Enters., LLC, 2010 U.S. Dist. LEXIS 120464, *4 (W.D. Pa. Nov. 15, 2010).
Actual Damages: For Injury the Plaintiff Can Prove
Commonly referred to as compensatory damages, actual damages are damaged which are awarded to plaintiffs who are able to prove they suffered real and tangible injury, such as depression, distress, or anxiety.
Under Pennsylvania defamation law, a defamation plaintiff may recover for any harm done to his or her reputation or any other harm the defamation causes. Dougherty v. Boyertown Times, 547 A.2d 778, 782 (Pa. Super. Ct. 1988).
This means that a plaintiff can recover any type of actual harm, including:
- Mental anguish,
- Personal humiliation, &
- Suffering. Thornton, 2010 U.S. Dist. LEXIS 120464, at *5.
Punitive Damages & Actual Malice
Also known as “exemplary damages,” punitive damages are awarded to plaintiffs in order to punish defendants who typically acted with malicious or reckless behavior when publishing or communicating a statement. Such damages are usually awarded in cases of deliberate violence against the plaintiff, gross negligence, and fraud.
In order to recover punitive damages under Pennsylvania defamation law, a plaintiff must prove by clear and convincing evidence that the defendant published the defamatory statements with actual malice. Bargerstock v. Wash. Greene Cmty. Action Corp., 397 Pa. Super. 403, 415 (Pa. Super. Ct. 1990).
Specifically, if the plaintiff is a public official, in order to recover punitive damages, her or she must show both actual malice and Common Law malice. Sprague v. Walter, 441 Pa. Super. 1, 66 (Pa. Super. Ct. 1995).
To recap, below is a comparison chart highlighting the major differences between all four types of defamation damages in Pennsylvania.
|Presumed Damages||Special Damages||Actual Damages||Punitive Damages|
|Definition||Damages which need not typically be proved by the plaintiff and associated with the principle of defamation per se. However, under Pennsylvania law, the verdict is still out on presumed damages.||Damages which need be proved with supporting and extraneous evidence, which are typically associated with the legal principle of defamation per quod.||Damages awarded to plaintiffs in order to compensate for actual harm or injury resulting from a defamatory statement.||Damages awarded to a plaintiff in order to punish a defendant for extremely malicious or wanton behavior when communicating or publishing a defamatory statement.|
|How to Prove||In the context of defamation per se in Pennsylvania, plaintiffs may only receive damages for proven harm, meaning that damages will not be presumed.||Pennsylvania libel plaintiffs need not prove special damages.||Typically, defamation plaintiffs are required to prove there was a proximate cause (a relationship) between the defamatory statement and the damage or injury.||Pennsylvania plaintiffs must prove by clear and convincing evidence that the defendant published such defamatory statements with actual malice.|
Defamation Removal Fact: If you’ve been the victim of online defamation on a website or ISP, your best course of legal action likely isn’t against the website, but rather the individual who posted the material. However, locating malicious online trolls and defamers can be difficult, therefore you should consult an experienced defamation removal attorney before attempting to uncover their identity.
Frequently Asked Questions (FAQ)
Below are some frequently asked questions you might have about defamation law in Pennsylvania and the United States.
Q. What has been the effect of the Internet on speech in the state of Pennsylvania?
A. In general, no Pennsylvania court has officially recognized arguments that Internet speech should be entitled to higher protections than any other type of speech.
Q. Does Pennsylvania recognize any protections for anonymous speech?
A. Unfortunately, the protection for anonymous Internet speech is not entirely clear in Pennsylvania.
Somewhat recently, a Pennsylvania Superior Court adopted a modified version of the Dendrite/Cahill tests, and noted several requirements for granting disclosure orders of an anonymous speaker, such as:
- There must be proper notification,
- Sufficiency of evidence,
- A submission of an affidavit in good faith and asserting necessity; &
- The Dendrite balancing test. Pilchesky v. Gatelli, 12 A.3d 430, 442 (Pa. Super. Ct. 2011). Id. at 442-46.
First, the notice element requires proper notification to the anonymous user subpoenaed. Specifically, the “reviewing court should inquire of the proprietor of the website to determine the most effective means of notification.” Id. at 442.
Second, the Pennsylvania court cites Cahill for the sufficiency of the evidence requirement and element, and the moving party must “present sufficient evidence to establish a prima facie case for all elements of a defamation claim, within the plaintiff’s control, such as would survive a motion for summary judgment.” Id. at 442-43.
Third, the subpoenaing party must submit an affidavit stating the they seek the identity of the defendant in good faith, the identifying information cannot be obtained by other means, and the information is directly related to the moving party’s claim, and the information is necessary to secure relief. Id. at 445-45.
Fourth, the moving party must satisfy the balancing test established in Dendrite. In balancing the defendant’s First Amendment rights against the strength of the plaintiff’s prima facie case, “the reviewing court should examine the defamatory nature of the comments, the quantity and quality of evidence presented, and whether the comments were privileged.” Id. at 445.
In contrast, yet prior to the Pilchesky case, two Pennsylvania courts applied a different test for disclosure of anonymous Internet identities and posters. Such four-factor test requires:
- “The subpoena seeking the information was issued in good faith and not for any improper purpose,
- The information sought relates to a core claim or defense,
- The identifying information is directly and materially relevant to that claim or defense, and
Information sufficient to establish or to disprove that claim or defense is unavailable from any other source. Enterline v. Pocono Med. Ctr., 751 F. Supp. 2d 782, 787 (M.D. Pa. 2008); McVicker v. King, 266 F.R.D. 92, 97 (W.D. Pa. 2010).
Q. Can Pennsylvania defamation defendants retract, clarify, or correct their defamatory statements prior to trial?
A. Pennsylvania does not have any statutes regarding retractions, corrections, or clarifications. However, courts consider retractions and refusals to retract. Furthermore, the Pennsylvania Supreme Court stated that retracting or refusing to retract are acts that are relevant to the defendant’s previous state of mind.
In some U.S. states, the retraction, clarification, or correction of a defamatory statement may result in the mitigation of the damages awarded.
Q. Has Pennsylvania criminalized defamation?
A. No. Pennsylvania has previously struck down its criminal libel statute as unconstitutional.
Q. Can Pennsylvania residents commence a defamation action against an out-of-state party?
A. Simply put, yes. However, Pennsylvania’s long-arm statute only allows courts to exercise jurisdiction over out-of-state defendants that cause a tortious injury in the state or commit a tortious act within the state.
In determining personal jurisdiction over out-of-state defendants, Pennsylvania courts will apply the Calder effects test, which contains three core elements:
- The defendant committed an intentional tort;
- The plaintiff felt the brunt of the harm in the forum, such that the forum can be said to be the focal point of the harm suffered by the plaintiff as a result of the tort; &
- The defendant expressly aimed his tortious conduct at the forum, such that the forum can be said to be the focal point of the tortious activity. Scott v. Lackey, 2012 U.S. Dist. LEXIS 88937, *8 (M.D. Pa. June 27, 2012).
Note that a website being accessed in Pennsylvania alone will not support a court’s general jurisdiction over an out-of-state party.
Q. What are SLAPP suits? Does Pennsylvania have any laws to protect against SLAPP suits?
A. Short for “Strategic Lawsuits Against Public Participation,” SLAPP suits are lawsuits brought against a party in order to intimidate, censor, burden, or otherwise prevent them from participating in a lawsuit. SLAPP suits are typically looked down upon in the legal system and can be highly unethical.
Pennsylvania has a narrow Anti-SLAPP statute that applies to successful defenses under Chapter 83 (relating to participation in environmental law or regulation).
Chapter 83 provides immunity to individual speech related to enforcing or implementing an environmental law or regulation. 27 Pa.C.S. § 8302(a). Exempt from this immunity are irrelevant and immaterial communications if:
- The allegation in the action or communication is knowingly false, deliberately misleading or made with malicious and reckless disregard for the truth or falsity;
- The allegation in the action or communication is made for the sole purpose of interfering with existing or proposed business relationships; or
- The oral or written communication to a government agency relating to enforcement or implementation of an environmental law or regulation is later determined to be a wrongful use of process or an abuse of process.
A prevailing defendant will receive attorney fees and court costs. 27 Pa.C.S. § 7707. If the defendant prevails in part, the court may allocate either a proportionate or a full award. Id.
Q. What is Prior Restraint? Does Pennsylvania Recognize Such Principle?
A. Prior restraint refers to the government’s censorship of a publication or communication before it’s actually published.
The Third Circuit interpreted the Pennsylvania Constitution, and ultimately found that the Pennsylvania Constitution prohibits a court from enjoining future libelous statements. Kramer v. Thompson, 947 F.2d 666, 670 (3d Cir. Pa. 1991).
Q. What is Defamation Insurance and Should I Purchase It?
A. Think of defamation insurance as a form of insurance which typically attaches to an existing insurance policy, and protects persons from claims of libel, slander, and other torts. As there aren’t very many actual defamation insurance policies, defamation claims are generally covered under “excess liability coverage,” a policy extending the scope of the original coverage.
Unless you are frequently publishing or communicating highly contentious content, or work in a high risk profession, such as news media, blogging, or journalism, you probably don’t need to purchase defamation insurance.
To read up further about defamation insurance and the reasons behind it, check out our all-encompassing blog post here.
Work with the Experienced Defamation Removal Lawyers of Minc Law Today!
If you’re a Pennsylvania resident, or resident of any U.S. state, and have been the victim of online defamation or slanderous attacks, contact the experienced defamation attorneys of Minc Law now!
At Minc Law, we’ve litigated in over 19 states and 3 countries, and have secured over 25,000 takedowns of pieces of defamatory and libelous content, and all for a flat, reasonable fee.
Our nationally recognized lawyers know who to work with and how to work with them in order to secure permanent and quick defamation removals, and have extensive history working with content managers, website administrators, and third-party arbitration firms to secure the removal of malicious and defamatory content.
Here’s what you can expect when working with the defamation removal attorneys of Minc Law:
- Courtesy & Respect: Our team of highly experienced defamation lawyers understand how stressful and overwhelming online defamation can be, so rest assured that we are here for you every step of the way. Always know that the defamation removal lawyers of Minc Law are on your side and working towards securing your best interests. Your goals are our goals.
- Open Communication & Dialogue: Some attorneys go missing or become unresponsive once the defamation removal process has started. Not us. At Minc Law, we will make sure to stay in frequent contact with you concerning the details of your removal and case.
- Results: Websites and business respond to Minc Law and our nationally recognized defamation attorneys. Having litigated in over ⅓ over all U.S. states and having removed over 25,000 pieces of content from ISPs and online forums, just know you’re in good hands when choosing Minc Law.
Put out the online defamation wildfire before it spreads. The longer you wait to remove online defamation, the more damage it’s going to do to not only your personal life, but professional one.