Defamation: Standards of Fault

Defamation is often an entire course in law school so it's certainly a complicated tort. There's more to know for the MBE than will be written in this post but what's written in this post is likely the most important information you'll need to know for defamation on the exam. The type of fault that a plaintiff must prove will depend upon the status of the plaintiff.

Public Figures:

Some plaintiffs are public figures. A person becomes a public figure by achieving a pervasive fame or notoriety or by voluntarily assuming a central role in a specific public controversy. Those who voluntarily assume a central role in a specific public controversy are often described as "limited-purpose public figures."

Classifying the plaintiff as a public figure is important because to win a defamation case, public figures must prove a higher degree of fault. Specifically, public figures (limited and otherwise) must prove "actual malice" which is defined as knowledge that the statement made about plaintiff was false at the time the statement was made or a reckless disregard as to the falsity of the statement. This is a subjective test so it will not be helpful to ask whether a reasonable person would have or should have known that the statement was false. The mindset of the actual defendant here is what matters.

Private Figures:

Unlike with public figures, for a private person to prove defamation only negligence is required. In this context that means that a reasonable person would have or should have realized that the statement made by defendant was false. Unlike the test for a public figure, this is an objective test.  Negligence is only constitutionally required, however, if the statement is a matter of public concern. If the statement is not a matter of public concern then constitutional restrictions will not apply but state law might still require a showing of some degree of fault such as negligence.

Also worth noting is that although a private figure is required to prove negligence in situations involving a matter of public concern, it might still be in the interest of a private figure to go the step further and prove actual malice. Where negligence is proven, only actual injury damages (damages to reputation, etc.) are recoverable by plaintiff. But if actual malice is proven, damages may be presumed and punitive damages are likewise recoverable.