Defamatory statements about conduct

Many libel suits are filed for attacks on personal character traits or lifestyle. For example, reputations can be damaged by reports that suggest people are dishonest or cruel or engage in conduct that deviates from generally accepted norms.

However, some statements, particularly those about a woman’s sexual conduct, that once led to libel judgments would likely not do so today given society’s constantly changing social mores.  

Many activities once considered sexually deviant -- out-of-wedlock pregnancy, premarital sex or cohabitation, for example -- are now significantly less likely to be viewed by the community as “unchaste,” promiscuous or immoral. Accordingly, statements or suggestions that impute this behavior to women may not be defamatory today.

The same may be true for statements about race and homosexuality, the public perceptions of which have evolved over the past decades, resulting in changed defamation standards. Modern courts have found that publicizing that someone is gay would not injure that person’s reputation -- a far cry from the days when consensual sexual acts between gay people were illegal in many states, and an accusation of homosexuality thus meant a defamatory accusation of criminal wrongdoing.    

Moreover, many statements that embarrass, annoy or merely hurt someone’s feelings do not necessarily damage that person's reputation. For example, a false statement that someone is poor is likely not defamatory because this trait has little to do with poor character. However, if a story implies that the person’s poverty is due to character flaws such as laziness or incompetence, for example, he or she may have an actionable defamation claim.

Although a judge usually determines whether a message is capable of a defamatory meaning, a jury decides whether that message, in its everyday meaning, actually defamed the person who is suing -- a determination that can vary widely based on the community where the jury is sitting. For example, a statement deemed defamatory in rural South Carolina may be non-defamatory in New York City. Thus, the question may be particularly difficult for online publishers, who are not restricted to the borders of any particular community. Although perhaps not preferable, erring on the conservative side and using as your standard those communities where an allegation of homosexuality would be professionally damaging or a suggestion of promiscuity truly damning when considering how to describe a subject’s behavior may be the safest course of action.