Identification -- Harm -- Fault (public officials vs. private figures)


Plaintiffs must prove that the alleged defamatory publication refers to them. This element of a libel lawsuit often is referred to as the “of and concerning” principle: There can be no liability if the statement at issue is not proven to be “of and concerning” the plaintiff.

Governmental entities cannot bring libel claims, nor can members of large groups (usually 25 people or more, as a rule of thumb). However, if the statement at issue can be interpreted as referring to a particular person in a group, that person can sue. Also, if the offending information pertains to a majority of the members of a small group, any member of the group has standing to sue.

A corporation may bring a libel claim if the alleged defamatory statement raises doubts about the honesty, credit, efficiency or prestige of that business. However, if the statements refer only to corporate officers, the corporation cannot litigate on their behalf.



The heart of a libel suit is the claim that the plaintiff’s reputation was injured. In some states, harm does not need to be shown if the statements in question concern a criminal offense, a loathsome disease, a female’s unchastity, or matters harming a person’s business, trade, profession or office. When any of these types of statements is involved, damage to the plaintiff’s reputation is presumed.

In most states, damage to reputation also is presumed when accusations of fraud, incompetence or improper behavior are made about business or professional people.

If the defamatory nature of the statements can be proven only by introducing facts that were not published as part of the original statements, a plaintiff usually must prove a monetary loss as a result of the publication to recover damages.


Fault (public officials vs. private figures)

All plaintiffs must demonstrate that the news organization was at fault in some way. The U.S.  Supreme Court has recognized different standards for different types of libel plaintiffs, with public officials and figures required to show the highest degree of fault.

Celebrities and others with power in a community usually are considered public figures. Politicians and high-ranking government personnel are public officials, as are public employees who have substantial responsibility for or control over the conduct of governmental affairs. Some courts have found that public school teachers and police officers also are public officials.

But determining if a person is a private or public figure is not always easy. In some instances, private and public categories may overlap. For example, a businessperson who has high visibility because of fundraising efforts in a community may not be a public figure for purposes other than the individual’s community activity.

Under the standard adopted by the Supreme Court in the seminal libel case New York Times Co. v. Sullivan, a plaintiff who is considered a public figure or official has a higher standard of proof in a libel case than a private plaintiff. The public figure or official must prove that the publisher or broadcaster acted with “actual malice” in reporting derogatory information. “Actual malice,” in libel parlance, does not mean ill will or intent to harm. Instead, it means the defendant knew that the challenged statements were false or acted with reckless disregard for the truth.

In determining whether actual malice exists, a court may examine a reporter’s newsgathering techniques. Although carelessness is not usually considered reckless disregard, ignoring obvious methods of substantiating allegations could be considered reckless.

In Harte-Hanks Communications, Inc. v. Connaughton,8 the Supreme Court held that even an extreme deviation from professional standards or the publication of a story to increase circulation do not in themselves prove actual malice. The Court also said that while failure to investigate facts does not necessarily prove actual malice, a “purposeful avoidance of the truth” may.

Edited quotations that are not verbatim will not necessarily demonstrate actual malice as long as the alterations do not materially change the meaning of the words the speaker used. In Masson v. New Yorker Magazine, Inc.,9 the U.S. Supreme Court acknowledged that some editing of quotations is often necessary, but it refused to grant blanket protection to all edits that are “rational” interpretations of what the speaker said.

If the plaintiff is a private litigant, he or she must at least prove that the publisher or broadcaster was negligent in failing to ascertain that the statement was false and defamatory. Some states may impose a higher burden on private-figure litigants, especially if the story in question concerns a matter of public importance.10


8. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989).

9. Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991).

10. States that require proof of malice for private-figure plaintiffs are Alaska, Colorado, Indiana, Louisiana and New Jersey.