Another Law Lesson: The Basics of Defamation

A few years ago, I thought about writing on the topic of defamation and invasion of privacy as they relate to genealogy, but I ultimately decided that there just wasn't enough material there to make it worth the time. Then, somewhat more recently, I wrote something that drew a comment that seemed a bit hostile. But with the sensory limitations of the written form, I couldn't tell if the commenter was merely seeking clarification or was challenging my premises. It then occurred to me that are people in the world who might be offended by what they perceived I had written. I got to to thinking about defamation and invasion of privacy again.

As a general rule, dead people cannot be defamed, nor can their privacy be invaded. That's one reason why I initially dismissed the idea about writing on these topics in genealogy. But then I began thinking about defaming the living by reference to the dead or invading the privacy of the living to get to the dead. I decided these matters did merit some examination.

Defamation is the "publication" of a communication that tends to harm the reputation of another by lowering him in the estimation of the community or to deter third persons from associating or dealing with him. At one time in legal history, defamation was of two types: slander, which was an oral communication of defamatory matter and libel, which was the printed publication of defamatory matter. The advent of broadcast media and the sensible evolution of the law contributed to the decline in the usages of the distinction. Now we generally refer simply to defamation.

To create liability for defamation, there must be (1) a false and defamatory statement concerning another person; (2) an "unprivileged" publication of that statement to a third party; and (3) negligence or some greater fault on the part of the person making the statement. The wronged party must suffer some damages or in some cases, need not suffer particular damages where the statement is "defamatory per se."

It's essential for defamation to exist that the statement be false. Or, as popularly stated, "truth is a defense." Thus, if Person A says that Person B is a "crook," and Person B indeed has been jailed for theft or corruption, there is no false statement and thus no defamation.

There must be "publication" of a false statement for defamation to exist. "Publication" means a communication of the statement in some form to someone other than the subject of the statement. Thus, if Person A tells Person B, "You're a crook," there is no defamation if nobody except Person B heard the statement. Generally, "self-publication" will not suffice. Thus, if Person B tells Person C, "Person A called me a crook," generally there is no defamation. There are some circumstances, however, in which self-publication will support a suit for defamation. For example, Boss fires Worker, telling Worker (falsely), "You stole from me." Worker then seeks another job and is asked by Recruiter, "Why did you leave your last job?" Worker says, "I was accused of embezzlement." Although Worker has herself published the statement, courts have held that she may sue Boss for defamation.

Generally, a person must suffer some damages to prevail in a suit for defamation. Loss of reputation alone is not enough to make the defamer liable unless it is reflected in some kind of economic or pecuniary loss. However, in the Ancient Olde Days, the rule was established that certain types of slander no actual harm was required to be proven. These were (1) words that accuse a person of a crime; (2) words that imputed to a person a "loathsome disease;" (3) statements that tend to cast aspersions on one in his or her business, trade, profession, or office; and (4) as to women particularly, an allegation of "unchastity." Today, an imputation of sexual immorality as to either sex is often considered defamatory per se, as are allegations of dishonesty or untruthfulness.

One other thing that's important: the allegedly defamatory statement must be a statement of alleged fact, not opinion.

So now, what has all this have to do with genealogy? As I said, dead people cannot be defamed. But a defamatory statement about a deceased person may reflect upon someone who is still living and therefore may be actionable by such a person. It may be that in writing a family history or publishing facts about someone's ancestors, a living person is identified in some derogatory manner. However, it's probably not sufficient for liability to merely make a family connection between the defamed ancestor and a living person. For example, if you allege that my deceased grandfather was a thief, that's likely not actionable by me since that statement says nothing about me. On the other hand, if you say that my royal grandfather held his title fraudulently and I have inherited that title, the innuendo might well reflect on me.

Coming Thursday: Avoiding Defamation in Genealogy
Coming Friday: Invasion of Privacy

Notice: The information in this writing is intended for educational use only and is not intended nor should it be construed as legal advice. If you have a legal problem, consult a lawyer admitted to practice in your state of residence. I am an active member of the bar of the State of California and am admitted to practice before the United States Supreme Court and various other federal courts. I am not licensed to practice in any other state. I am not presently soliciting or accepting new clients in the matters discussed above.