WEBVTT - When Can You Claim Defamation? 0:00:01.920 --> 0:00:04.320 Welcome to brain Stuff, a production of I Heart Radio, 0:00:06.200 --> 0:00:11.039 Hey brain Stuff Lauren Vogelbaum. Here, on its face, the 0:00:11.160 --> 0:00:15.360 legal concept of defamation is not a particularly difficult one 0:00:15.400 --> 0:00:19.320 to grasp. If you say something or publish something that 0:00:19.400 --> 0:00:25.960 damages someone or something else's reputation, that's defamation. As with 0:00:26.040 --> 0:00:30.240 anything surrounding the law, though that seemingly straightforward idea can 0:00:30.320 --> 0:00:35.880 get complicated pretty quickly. Libel, slander, actual malice, the truth, 0:00:36.159 --> 0:00:40.480 and who are what constitutes a public figure all impact 0:00:40.560 --> 0:00:44.320 whether defamation, in the eyes of Lady Justice, has actually 0:00:44.360 --> 0:00:48.199 taken place. Those questions are also why the world is 0:00:48.280 --> 0:00:51.080 up to its French callers and attorneys. We need them 0:00:51.120 --> 0:00:56.000 just to straighten these things out. Still, remembering what has 0:00:56.040 --> 0:00:59.280 to happen first for defamation to take place always helps 0:01:00.080 --> 0:01:06.119 somebody's gut to get hurt. Here's how defamation works. Someone 0:01:06.160 --> 0:01:09.040 makes a statement, the statement is published in one way 0:01:09.160 --> 0:01:13.240 or another, the statement causes injury, the statement is found 0:01:13.319 --> 0:01:16.880 to be false, and the statement does not fall into 0:01:16.920 --> 0:01:22.400 a privileged or protected category. Examples of privileged or protected 0:01:22.440 --> 0:01:27.600 statements include testimonies made during court trials, and sometimes statements 0:01:27.640 --> 0:01:31.640 that are offered as opinions. Although that one's sticky. Simply 0:01:31.680 --> 0:01:34.920 claiming that something is opinion is not automatically a shield 0:01:34.959 --> 0:01:38.680 against defamation charges. The courts will look at the context 0:01:38.720 --> 0:01:42.920 and substance of a statement too. There's no difference legally 0:01:43.040 --> 0:01:46.720 between say, the statements John stole a hundred dollars from 0:01:46.720 --> 0:01:50.640 the corner store last week and in my opinion, John 0:01:50.680 --> 0:01:53.160 stole a hundred dollars from the corner store last week. 0:01:53.920 --> 0:01:59.840 They both could be found libelous. But so the potentially 0:02:00.000 --> 0:02:03.800 defamatory statement in question can be made either orally, which 0:02:03.840 --> 0:02:07.600 is called slander, or can be written, which is called libel. 0:02:08.600 --> 0:02:12.200 In the old days, before publishing written work became as 0:02:12.200 --> 0:02:15.560 easy as sending a tweet, a slander was not considered 0:02:15.680 --> 0:02:20.400 quite as serious as libel. Saying something potentially defamatory in 0:02:20.480 --> 0:02:23.480 a debate on the town hall steps just didn't reach 0:02:23.480 --> 0:02:26.320 as many ears or eyes as the written word could. 0:02:27.400 --> 0:02:31.920 But in these are modern times that has changed. We 0:02:31.960 --> 0:02:34.679 spoke with Greg Lisby, a licensed attorney in the state 0:02:34.680 --> 0:02:37.519 of Georgia and a professor of communication at Georgia State 0:02:37.600 --> 0:02:41.880 University in Atlanta. He said, and these days there really 0:02:41.960 --> 0:02:45.840 is not much difference, because almost all communication is really 0:02:46.000 --> 0:02:51.919 mass So the damage, the injury, the hurt caused by 0:02:51.960 --> 0:02:55.840 an allegedly defamatory statement can come in a lot of forms, 0:02:56.360 --> 0:02:59.280 but it's generally recognized as a hit to someone or 0:02:59.360 --> 0:03:03.200 some entity his reputation. That often can bleed into all 0:03:03.240 --> 0:03:06.480 sorts of other types of damage, including to an individual's 0:03:06.520 --> 0:03:11.800 livelihood or a corporation's ability to do business. Enter the lawyers. 0:03:13.360 --> 0:03:16.839 The heart of defamation cases, the heart of the law 0:03:16.880 --> 0:03:20.720 as a whole, really is getting at the truth. If 0:03:20.760 --> 0:03:25.120 that supposedly defamatory published statement that has caused an injury 0:03:25.440 --> 0:03:29.639 is in fact true, all bets are off. True statements 0:03:29.680 --> 0:03:34.720 cannot be considered defamatory. A Lisbie said, truth is always 0:03:34.720 --> 0:03:37.760 a defense. Maybe not a perfect defense, but truth will 0:03:37.800 --> 0:03:42.480 overwhelmingly get you where you want to be. Let's take 0:03:42.600 --> 0:03:46.520 as an example, the claim of Dominion Voting Systems during 0:03:46.600 --> 0:03:51.200 the heated presidential election of Dominion Voting Systems, which is 0:03:51.280 --> 0:03:54.400 an election technology firm with customers in twenty States and 0:03:54.480 --> 0:03:58.800 Puerto Rico, was the target some potentially defamatory statements from 0:03:58.800 --> 0:04:04.119 the supporters and the legal team of then President Donald Trump. Dominion, 0:04:04.240 --> 0:04:07.960 the president's backers said, was a major force behind fraudulent 0:04:08.040 --> 0:04:11.320 voting that through the election to now President Joe Biden. 0:04:12.960 --> 0:04:18.320 In January, Dominions sued Rudy Giuliani, one of Trump's lawyers, 0:04:18.440 --> 0:04:22.239 for one point three billion dollars in damages. In the suit, 0:04:22.520 --> 0:04:27.440 under a detailed section entitled Factual Allegations, Dominions lawyers laid 0:04:27.440 --> 0:04:31.479 out their case against Giuliani, who railed against Dominion in 0:04:31.560 --> 0:04:35.880 television interviews and while selling products on his podcast. The 0:04:35.920 --> 0:04:40.120 section of the suit was subtitled Giuliani enriches himself by 0:04:40.160 --> 0:04:43.840 falsely claiming that Dominion fixed the election, a claim he 0:04:43.880 --> 0:04:46.359 was not willing to make in court because he knew 0:04:46.480 --> 0:04:51.479 it was false. A jury, if the case gets that far, 0:04:51.800 --> 0:04:55.760 will determine whether the many statements Giuliani made regarding Dominion 0:04:55.839 --> 0:04:59.919 are true or not. For its part, Dominion offers rebuttal 0:05:00.000 --> 0:05:03.520 two charges and others on the company website and claims 0:05:03.560 --> 0:05:07.040 that those falsehoods from Giuliani and others have damaged more 0:05:07.080 --> 0:05:11.320 than reputations. The suit states, as a result of the 0:05:11.320 --> 0:05:15.800 defamatory falsehoods, Dominions founder and employees have been harassed and 0:05:15.800 --> 0:05:19.560 have received death threats, and Dominion has suffered unprecedented and 0:05:19.640 --> 0:05:25.120 irreparable harm Lisbie said, the question the court is going 0:05:25.160 --> 0:05:28.440 to be asking is has their reputation been harmed as 0:05:28.480 --> 0:05:31.880 a company? Is it possible is it likely that people 0:05:31.960 --> 0:05:34.520 will not buy their voting machines based on the fact 0:05:34.680 --> 0:05:37.960 that quote the algorithm has been tampered with or quote 0:05:38.000 --> 0:05:40.919 certain number of votes can be changed easily and secretly. 0:05:41.800 --> 0:05:46.640 The answer is yeah, I think they could win. Getting 0:05:46.720 --> 0:05:49.760 to the truth of an allegedly defamatory statement is a 0:05:49.920 --> 0:05:54.320 step toward legal relief, but it's not everything. The law 0:05:54.400 --> 0:05:57.839 lays out two different standards of proof, depending upon who 0:05:57.960 --> 0:06:02.200 is claiming to have been libeled. A regular joe charging 0:06:02.200 --> 0:06:05.640 defamation has only to show negligence on the part of 0:06:05.640 --> 0:06:08.599 the person who made the statement. On the other hand, 0:06:08.880 --> 0:06:12.440 a public figure, that is to say, a politician, an actor, 0:06:12.480 --> 0:06:15.719 a government official, a sports star who's claiming to be 0:06:15.800 --> 0:06:20.040 defamed must meet a different and higher standard, something known 0:06:20.080 --> 0:06:23.719 as actual malice or a reckless disregard for the truth. 0:06:24.400 --> 0:06:29.440 It's much harder to prove actual malice. Lizby explained, actual 0:06:29.520 --> 0:06:33.560 malice means knowing falsehood did the person know the statements 0:06:33.560 --> 0:06:37.520 were false. Negligence means basically, did the person act in 0:06:37.560 --> 0:06:40.200 such a way where they ignored whether the statements were 0:06:40.200 --> 0:06:44.080 false or not. The courts make it more difficult on 0:06:44.120 --> 0:06:48.320 a public figure for basically two reasons. First, that public 0:06:48.360 --> 0:06:52.720 figures well are public. They've sought out public attention and 0:06:53.000 --> 0:06:57.200 must reasonably expect some of it to be negative. Secondly, 0:06:57.320 --> 0:07:00.960 public figures have big platforms, and us have the voice 0:07:01.000 --> 0:07:03.960 and reach to make their defense without turning to the 0:07:04.040 --> 0:07:09.720 judicial system. Most private citizens don't have that. The courts 0:07:09.720 --> 0:07:11.960 will make the call on whether the person or entity 0:07:12.040 --> 0:07:14.520 bringing the suit is a public figure, so as to 0:07:14.560 --> 0:07:18.400 determine which standard of proof must be met, whatever the 0:07:18.440 --> 0:07:22.880 case proving defamation, Not to mention, recovering actual, presumed or 0:07:22.920 --> 0:07:27.240 punitive damages can be a long, arduous and costly endeavor, 0:07:27.800 --> 0:07:36.640 as attaining justice often it's Today's episode was written by 0:07:36.720 --> 0:07:39.400 John Donovan and produced by Tyler Klang. For more on 0:07:39.440 --> 0:07:41.760 this and lots of other curious topics, visit how stuff 0:07:41.760 --> 0:07:44.080 works dot com. Brain Stuff is a production of I 0:07:44.160 --> 0:07:46.880 Heart Radio. Or more podcasts to my heart radio visit 0:07:46.920 --> 0:07:49.680 the iHeart Radio app, Apple Podcasts, or wherever you listen 0:07:49.760 --> 0:07:50.680 to your favorite shows.