Question and Answer #6--The Difference Between Defamation and Right of Privacy

Question: What is the difference between defamation and the right of privacy?

Answer: That’s a big question because these are vast areas of the law. Let me focus on libel, which is written defamation, and false light invasion of privacy.

Libel is a false statement about a person that is made to a third person (published), that harms the person’s reputation, and that is caused by absolute malice if it is about a public figure and negligence for non-public figures. Absolute malice means knowledge that the statement was false or indifference as to whether it was true or not—

When a complaint is filed, the defendant answers, the plaintiff responds, and then, usually, the defendant files a motion to dismiss, arguing that the plaintiff failed to state a claim, meaning one or more elements of the tort, in this case libel, has not been satisfied. Most of the elements—whether the statement is true or not, the degree to which it has been published—are of the type a judge will most likely want to let a jury decide, and so the judge will deny dismissal if the motion to dismiss focuses on them. It’s possible that the statement is so obviously true that the judge will dismiss on a showing of its truthfulness, but, more often than not, truth is not that clear cut. And so, defendants seeking a dismissal will likely go after damages, saying the defendant has not been damaged. And damages in libel is sometimes really hard to prove.

I remember a play titled A Case of Libel by Henry Denker, which was a fictionalized account of a chapter in the attorney Louis Nizer’s book My Life in Court about an actual libel case. My Dad was an attorney, but he, like many attorneys, didn’t talk about the law at home and usually disliked movie versions of trials because of the liberties taken. But when he saw the tv version in 1968 he liked it, feeling it was pretty realistic. (Denker was trained as an attorney and was, after all, working from Nizer’s book.) In the play, the attorney tells the plaintiff he has to show he was damaged by the statements made about him by a powerful, muckraking journalist. There is one scene in which the plaintiff and his attorney talk to a friend, begging him to state in a deposition that he had told the plaintiff he didn’t get the job because of the false statements. The friend, fearful of retribution by the journalist, says he can’t. So you have to prove that you lost your job or didn’t get the speaking engagement, something, to win damages.

But there’s an interesting thing about libel as opposed to slander, which is oral defamation. In a case of slander, absence of damages will not survive a motion to dismiss. Slander is about words in the air, and the reasoning is that if you are not able to show damages from slander in response to a motion to dismiss, which occurs several months after the alleged slander, you won’t be able to show it at trial. But with libel we’re talking about words on paper or on tape or on film. They are relatively permanent. And the reasoning is that absence of damages in a case of libel will survive a motion to dismiss since just because you can’t show damages several months after the event doesn’t mean that by the time of a trial you won’t be able to show that you have lost or your job or lost the speaking engagement or been booted out of your club for the behavior alleged in the published statement. Those allegedly defamatory words are out there and still capable of doing harm. And it often takes harm to reputation a while to be apparent.

This means that if you are sued for libel, unless the statements are instantly provably true and unless you settle, you are likely to have to go through discovery—interrogatories, depositions, etc.—and go at least to the summary judgment stage and possible to trial. This is your time, your attorney's time, fees, and costs.

This is a good reason to do everything you can not to get sued for libel.

Now, even though a plaintiff may be able to go all the way to trial without proving damages, he or she will still have to prove damages at trial to win damages. It is for this reason that you’ll see libel verdicts in which the jury found for the plaintiff but only awarded a penny in damages. You still have to take the damages aspect of libel seriously.

False Light Invasion of Privacy. This tort is not recognized in every state, although states that do not have it may still entertain aspects of it in a broader right of privacy claim. But it does show the big difference between defamation and the right of privacy: defamation is grounded in reputation, and false light invasion of privacy is not.

My favorite false light case concerned the baseball pitcher Warren Spahn. Spahn was a great pitcher but when a writer was commissioned to write an unauthorized biography of Spahn for children he decided he needed to make Spahn’s life more exciting and made a number of false statements, including that Spahn won the Bronze star during World War II, which he did not. Spahn was embarrassed but could not sue for libel. Why?

Libel is a false statement that is defamatory about a person that is made to a third person (published) and that harms the person’s reputation. Saying that someone did brave things in a war does not harm his or her reputation; it enhances it. Therefore, Spahn could not sue for libel. He did sue for false light invasion of privacy, arguing that the harm was not to his reputation but to his privacy. The lower court blocked publication of the book and awarded Spahn damages of $10,000. On appeal, the court affirmed, citing the emotional injury the false statements had caused and would cause Spahn, Spahn v. Messner Inc. 21 N.Y. 2d 124 (1967).

The Spahn case has been used as a precedent all over the country. The legal definition of false light is that it is a publication by the defendant about the plaintiff that is made with actual malice, that places the plaintiff in a false light, and that would be embarrassing to reasonable people.