A Primer on Defamation in South Carolina

The tort of defamation is making a fashionable comeback thanks to the Internet.  To some the web resembles the Wild West, a place where social etiquette is unfashionable and where one’s discretion is restrained only by bandwidth.  While the sharing of ideas with the click of a button outweighs the burdens imposed restricting the same, untrained and unedited world-wide publication of purported fact presents a fertile atmosphere for defamation.  This coupled with the fact that the law of defamation is based on the idea that one’s reputation is invaluable, makes a tort of defamation a very relevant topic for discussion.

Defamation is a spoken, written or otherwise communicated statement about another person that has a natural tendency to harm that person’s reputation. Kendrick v. Citizens, 266 S.C. 450 (1976).

Unlike intentional torts, such as battery and trespass where the law requires intent on the part of the defendant to bring about the harm, intent to harm an individual is not always an absolute requirement to prove a prima facia case for defamation.  Traditionally, to establish a case for defamation the burden is on the Plaintiff to prove the following:

(1) Defamatory language.  This is language that tends to adversely affect one’s reputation.  Generally, defamatory language attacks an individual’s honesty, integrity, virtue, sanity, or other character traits.   Defamatory language may be established through innuendo, or extrinsic facts.   

(2) Concerning the Plaintiff.  The language must be “of or concerning” the plaintiff.  In sum, the language must identify the plaintiff to a reasonable reader, or one listening to the publication.  A statement may be actionable even though no clear reference to a plaintiff is made.

(3) Publication.  The defamatory language must be “published” to a third person.  This doesn’t mean that it must be in writing, but only that a third person must be the recipient of the statement.  It’s not enough that one speaks defamatory language.  It must be communicated to a third person and the third person must understand it.  Only the intent to publish, not to defame, is required. Each repetition of the defamatory statement is a separate publication that the plaintiff may independently recover damages.

(4) Reputation.  The reputation of the Plaintiff must be harmed.  Harm to reputation may stem from a statement that lowers a person’s reputation in the community or leads others to refrain from associating or dealing with him.

(5) Falsity.  Generally, the plaintiff is required to prove that the statement is false.  A distinction is drawn as to the proof of damages required, and the type of defamation (libel vs. slander; general vs. special damages), but this distinction is beyond the scope of this article.

(6) Fault.  The degree of fault depends on the type of plaintiff, or whether she is a public official / public figure, or a private person where the defamation is related to a public concern.  Where the plaintiff is a public official malice is required.  Malice is proved when the speaker publishes a false statement with knowledge of its falsity, or with reckless disregard as to the truth.  Where the plaintiff is a private person and the statement is related to a public concern negligence is required.  Where a statement is made regarding a private person and it is related to a private matter, the law does not require actual malice, and generally the plaintiff must only prove 1 – 4 above. 

Defamation in South Carolina

The South Carolina Supreme Court held in Fleming v. Rose that to prove defamation the plaintiff must show: (1) a false and defamatory statement was made; (2) that it was unprivileged and published to a third person; (3) fault; and (4) either the statement was actionable irrespective of harm or the publication of the statement caused special harm.  Fleming, 350 S.C. 488 (2002).

In South Carolina a statement that is defamatory on it’s face is referred to as defamation per se.  For example, “Doe is a liar.”  On the other hand, if the statement is unclear requiring outside evidence to prove who or what the speaker was saying, the statement is referred to as defamation per quod, and the plaintiff has the burden to present evidence to prove defamation.  Holtzscheiter v. Thomson Newspapers, 376 S.C. 308 (Ct. App. 2007).

Generally, if the defamatory statement is actionable on it’s face, or per se, then the plaintiff need not prove damages or actual malice.   Slander (spoken defamation) is actionable per se if the statement relates to the commission of a crime of moral turpitude, a sexually transmitted disease, adultery, chastity, or unfitness in one’s business or profession.  Smith v. Phoenix Furniture Co., 339 F. Supp. 969, 971 (D.S.C. 1972).

Juries are given wide discretion regarding damages in South Carolina.  Money damages rewarded for defamation are those that necessarily result from publication of a defamatory statement.  General damages are those which arise by “interference of law and need not be proved.” Holtzscheiter, 338 S.C. 308 (Ct. App. 2007).  They include injury to reputation, mental suffering, hurt feelings, and other similar types of injuries which are incapable of definite money valuation.  Id.  Moreover, punitive damages are available in South Carolina “in the interest of society” and as a “punishment and as a warning and example to deter the wrongdoer and other from committing like offenses in the future.”  Lynch v. Toys R Us Del., 375 S.C. 604 (Ct. App. 2007).

For the above-reasons, defamation is truly a relevant topic for discussion, and is likely to become an increasingly talked about subject in South Carolina.  Due to the breadth of case law regarding defamation this discussion did not encompass all elements of this tort.  Please feel free to contact us if you have any questions, or you feel that you may have a cause of action sounding in defamation.

 

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