Defamation / Libel / Slander

Protecting your good name and reputation in the community is of the utmost importance.  Injury to your reputation can result in damage to important relationships, missed business opportunities, and even loss of employment.  Defamation is broadly defined as a false statement that is communicated to others that could harm a person’s reputation.  Written defamation is called libel, whereas spoken defamation is called slander. The ability to defame others has increased exponentially with the proliferation of the internet, email, text messaging, and social networking sites such as Facebook, Twitter, and Instagram.  These social media platforms allow for widespread distribution of false statements, which can result in widespread and irreversible reputational damage.  Taking fast action is crucial to protecting your reputation.  If your reputation has been injured as the result of a defamatory statement, contact us to discuss the legal options available to you.

Protecting Your Reputation in the Digital Age Protecting your reputation is critical. Damage to your reputation can result in loss of important relationships, opportunities, and employment. Whether on Facebook, through other social media platforms, texting, posting, websites or traditional means of communication, the ability to cause widespread and irreversible damage to one’s reputation has become alarming.  At the same time, we are becoming increasingly aware of the value of our reputations. For the first time, search engines such as Google, Yahoo and Bing can make false statements posted by individuals readily available to the entire world.

Often it is difficult, if not impossible, to have such posts removed through these large search engines that have no responsibility for hosting such damaging and defamatory information.  Section 230 of the Communications Decency Act affords websites broad legal immunity and they generally cannot be held liable for untrue posts by users on their websites, even if the website moderates posts or sets standards for use of the website.  With no ability to recover for damage to your reputation from Facebook, Google, Instagram, Twitter, etc., victims of defamation must look to the person who actually made the false statements.

Taking fast action is crucial when it comes to protecting your reputation. While individuals may have the right to voice their opinions, defamation is illegal and can result in recovery and compensation as well as injunctions and removal of the offending statements or materials.

What is Defamation?

The tort of defamation allows a plaintiff to recover for injury to his or her reputation as the result of the defendant’s communications to others of a false message about the plaintiff. Swinton Creek Nursery v. Edisto Farm Credit, 514 S.E.2d 126 (S.C. 1999). Defamatory communications take two forms: libel and slander. Slander is a spoken defamation, while libel is a written defamation or one accomplished by actions or conduct. Id.

A communication is defamatory if tends to impeach the honesty, integrity, virtue or reputation… and thereby to expose him to public hatred, contempt, ridicule, or to cause him to be shunned or avoided, or to injure him in his office, business, or occupation. Smith v. Bradstreet, 41 S.E. 763 (S.C. 1902). In other words, a communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him. Holzscheiter v. Thomson Newspapers, Inc., 506 S.E.2d 497 (S.C. 1998).

If the defamatory meaning of a message or statement is obvious on the face of the statement, the statement is “defamatory per se.” Parrish v. Allison, 656 S.E.2d 382 (S.C. Ct. App. 2007). In determining whether a statement is defamatory per se, words must be given their plain and ordinary meaning. Timmons v. News & Press, Inc., 103 S.E.2d 277 (S.C. 1958). In assessing defamation, words are to be construed fairly, according to their natural and reasonable import, in the plain and popular sense in which the average reader naturally understands. Id.

It is well-settled that, under South Carolina law, an insinuation can be defamatory and actionable. A defamatory insinuation may be made by actions or conduct, as well as by word. Tyler v. Macks Stores of S.C., Inc., 272 S.E.2d 633 (S.C. 1980).  “A mere insinuation is actionable as a positive assertion if its false and malicious and the meaning is plain.” Id.; see also Richardson v. State-Record Co., 499 S.E.2d 822 (S.C. Ct. App. 1998).

Another determination to be made is whether the defamatory statement is “actionable per se.” If the defamation is actionable per se, the law presumes the defendant acted with common law malice and that the plaintiff suffered general damages. Parrish v. Allison, 656 S.E.2d 382 (S.C. Ct. App. 2007). Slander per se exists if the defamatory statement involves an allegation of one or more of the following: (1) commission of a crime; (2) contraction of a loathsome disease; (3) adultery; (4) unchastity; or (5) unfitness in one’s business or profession. Id.

Defenses to Defamation There are a number of defenses to defamation, including truth, absolute privilege, and qualified privilege.

The truth of the matter is a complete defense to an action based on defamation.” WeSav Fin. Corp. v. Lingefelt, 316 S.C. 442 (1994).  Under common law, a defamatory communication was presumed to be false, but truth could be asserted as an affirmative defense.  Parrish v. Allison, 376 S.C. 308 (Ct. App. 2007).  When the alleged defamatory statements are published by a private figure and involve a matter of private concern, the plaintiff is not required to prove falsity of the statements; instead, the defendant has the burden of pleading and proving the substantial truth of each of the alleged defamatory statements. Castine v. Castine, 403 S.C. 259 (Ct. App. 2013).

The class of absolutely privileged communications is narrow and is generally limited to legislative and judicial proceedings and acts of state.  There is no liability for an absolutely privileged communication even if the defamatory words are falsely and maliciously published.  Fulton v. Atlantic Coast Line R. Co., 220 S.C. 287 (1951).

A defendant may assert a conditional or qualified privilege as an affirmative defense in a defamation action when the defamation is made in good faith and with proper motives.  Kunst v. Loree, 424 S.C. 24 (Ct. App. 2018).  In determining whether or not the communication was qualifiedly privileged, regard must be had to the occasion and to the relationship of the parties.  When one has an interest in the subject matter of a communication, and the person (or persons) to whom it is made has a corresponding interest, every communication honestly made, in order to protect such common interest, is privileged by reason of the occasion.  Bell v. Bank of Abbeville, 208 S.C. 490 (1946).  A qualified privilege may exist where the parties have a common business interest and the publication has occurred in a proper manner and to the proper parties only.  Abofreka v. Alston Tobacco Co., 288 S.C. 122 (1986).  Other instances where conditional privileges may apply include publication of judicial proceedings, public records, fair comment, pre-trial negotiations, self-defense, defense of others, public duty, family duty and credit reporting.

Defamation Attorney We at Clawson Fargnoli, LLC understand the importance of a good reputation.  It is important to retain counsel who are experienced in evaluating and litigating defamation cases to maximize the value of your case.  Navigating statements of opinion vs. statements of fact and applying the law regarding defenses to defamation can be complex.  If you have been the victim of defamation, please contact us to discuss the legal options available to you.