The Minc Law Guide to District of Columbia Defamation Law

What is Defamation? How Does the District of Columbia Define Defamation?

The tort of defamation, also commonly referred to as ‘defamation of character’’, is an overarching legal term governing false spoken and written statements communicated to a third-party, which subsequently causes damage to a person’s reputation. Defamation is categorized as a civil wrong in the U.S. and other Common Law legal jurisdictions (ex. Canada, U.K., Australia), thus allowing defamed persons to recover damages for their harm suffered.

Specifically, defamation can be broken down into two core components and types:

• Libel: the written or published (video, photograph, media) communication of a false assertion of fact to a third-party, resulting in harm or damage to a person’s reputation.
• Slander: the spoken communication of a false assertion of fact, resulting in harm or damage to a person’s reputation.

It’s important to look to the form in which the defamation is communicated, and oftentimes, the general public confuses both libel and slander – incorrectly labeling most defamation as slander, even if it was communicated via written statement.

Furthermore, when bringing a libel or slander action in any U.S. state, it’s important to understand that most states have differing statutes of limitations and other formalities. Generally, slander actions must be commenced earlier than libel actions, due to the fleeting nature of the evidence.

Below are several other common names for the tort of defamation:

• Traducement,
• Calumny,
• Character assassination,
• Vilification, &
• Disparagement.

Note that the tort of disparagement is more aptly labeled as the ‘tort of commercial or business disparagement’, and is typically available to businesses and companies who have had their property or financial rights impaired via false statements. You can read up further on business/commercial disparagement by checking out our blog post, “What is Business Disparagement?” breaking down the policies behind commercial disparagement, elements of disparagement, veggie libel laws, common defenses to disparagement claims, and how to hold a disparaging party liable.

So, what do you call a person who publishes or communicates a false statement of fact to another person?

Parties who commit defamation are typically referred to as:

• Libelers: a party who publishes a written false assertion of fact, damaging another person’s reputation.
• Slanderers: a party who verbally communicates a false assertion of fact, damaging another person’s reputation.
• Defamers: the all-encompassing term for a party who communicates or publishes ea false assertion of fact.
• Famacide: a rarely used term which literally translates to, “a person who destroys another’s reputation.”

Now, let’s take a look at the District of Columbia’s definition of defamation.

District of Columbia Defamation Elements

In order to succeed in a defamation claim, District of Columbia plaintiffs must prove and show facts that:

• The defendant made a false and defamatory statement concerning the plaintiff;
• The defendant published the statement without privilege to a third party;
• The defendant’s fault in publishing the statement amounted to at least negligence; &
• Either the statement was actionable as a matter of law, irrespective of special harm, or that its publication caused the plaintiff special harm.

If you’d like to see how the District of Columbia’s defamation definition compares to other U.S. states and their laws, check out our other comprehensive defamation state guides:

• Ohio Defamation Law,
• Florida Defamation Law.
• Utah Defamation Law,
• Illinois Defamation Law,
• California Defamation Law,
• New York Defamation Law,
• Texas Defamation Law,
• Georgia Defamation Law, &
• Indiana Defamation Law.

The District of Columbia considers a publication to be defamatory if it tends to injure the plaintiff in his or her trade, profession, or community standing, or lower him or her in the estimation of the community.

Additionally, District of Columbia defamation law requires allegedly defamatory remarks to be more than unpleasant or offensive, and they must make the plaintiff appear odious, infamous, or ridiculous.

In cases of news reports, D.C. defamation law states that defamation may arise from factually accurate news reports, but their meaning must still be defamatory rather than uncomplimentary or unpleasant, and the full article must be considered.

And, when challenging publications, a challenged publication must be read and construed in the sense in which the reader would ordinarily understand it – specifically, it must be taken as a whole and in the sense in which it would be understood by the readers to whom it was addressed.

Finally, even where the central theme of an article is not false, specific portions may be actionable under D.C. defamation law. However, the plaintiff is prohibited from combining the harmful nature of some statements with the falsity of other, immaterial statements in order to establish a basis for a defamation claim.

D.C. trial courts are required to distinguish between statements that are both verifiably and materially false and reasonably capable of a defamatory meaning from mere hyperbole or colorful rhetoric.

Defamation Removal Tip: Setting up a Google Alerts account is an effective step towards combating online defamation. Not only will you will be alerted anytime your name is mentioned online, you’ll be able to locate and identify the source immediately, allowing you to put out the defamation fire before it spreads and does serious damage.

If you’re a resident of the District of Columbia or any U.S. state and have been the victim of libel or slander, reach out to the defamation removal attorneys of Minc Law today!

At Minc Law, we boast a nearly 100% online defamation removal rate, and all for a flat, reasonable fee. The defamation lawyers of Minc Law have secured hundreds of online defamation takedowns and removals, all from revenge porn websites, cheater websites, scam reporting websites, consumer advocacy forums, and more. We know who to work with and how to work with them in order to secure permanent and effective online defamation removals.

Reach out today to schedule your free, initial no-obligation consultation with an intake specialist by calling us at (216) 373-7706 or by filling out our contact form online.

The online abuse stops today. We’re here to fight for your reputation.

Now, let’s take a look at the District of Columbia’s defamation pleading standard and break down exactly what pleadings are and the reason behind them.

District of Columbia Defamation Pleading Standard

First, before addressing the District of Columbia’s defamation pleading standard, it’s essential we define exactly what pleadings are and explain the reasons behind them. If you’ve ever watched ‘Law and Order’ or any other legal television drama, you’ve likely heard one of the following pleading terms.

So, what are pleadings?

Pleadings are required formal documents that must be filed with the court, which state a party’s core claims and positions against one another. Specifically, pleadings are initiated by the the plaintiff (think about it, without the plaintiff bringing a claim, why would a defendant choose to avail themselves to a legal action?). Below are four of the most common documents used in pre-trial pleadings:

• Complaint: the initial document brought forth by the plaintiff, outlining their positions, claims, facts of the case, and relief (damages) sought.
• Answer: the defendant’s subsequent response to a plaintiff’s complaint, responding to each accusation by either denying the claims or raising certain defenses to escape liability.
• Reply: the plaintiff’s response to a defendant’s answer, addressing any new claims or points raised by the defendant.
• Counterclaim: a claim brought by the defendant against a plaintiff meant to offset certain claims.

As defamation law is highly complex and state specific, it’s important to reach out to an experienced defamation removal attorney to assist in bringing a claim, identifying perpetrators, and understanding pleading formalities.

As the United States is so large and diverse, some states may greatly differ in their respective pleading formalities and requirements. For example, one state may require defamation plaintiffs to bring their action within a shorter time period, while another may have a longer and more relaxed deadline. Or, some states might require a plaintiff to plead their case with specificity, outlining every detail and statement made, while another may only require a plaintiff to provide the gist of the defamatory statement.

In Washington, D.C., it’s the plaintiff’s burden “the provide the publication of the allegedly defamatory statement” by the defendant.

The allegedly defamatory matters also must be set forth verbatim.

So, what does the District of Columbia consider to be insufficient evidence for pleading defamation?

Allegations that defamatory statements were made “through Internet correspondence” have been held to be “not definite enough, on their own, to sustain his defamation claim because they do not identify the recipients of [the] alleged publication.” Ye v. Holder, 644 F. Supp. 2d 112, 116 (D.D.C. 2009).

Also, an allegation that a party published the allegedly defamatory statements throughout the American Petroleum organization was held to lack “sufficient specificity to state a claim for defamation.” American Petroleum Inst. V. TEchnomedia Int’l, Inc., 699 F. Supp. 2d 258, 267 (D.D.C. 2010).

So, what’s the take away from all this?

The District of Columbia requires defamation plaintiffs to:

• Provide the actual publication containing the allegedly defamatory statements,
• Set forth the statement “verbatim,”
• Make sure the statements in question clearly identify a recipient, &
• Have a certain level of specificity.

Legal protections for anonymous speech is discussed in further detail in our ‘Frequently Asked Questions’ section.

Now that we’ve tackled the District of Columbia’s defamation pleading standard and requirements, let’s turn to several types of statements U.S. defamation law and District of Columbia defamation law consider to be so inherently defamatory and damaging, that plaintiffs need not prove damages. Such legal doctrine is referred to as ‘defamation per se.’

To see how District of Columbia’s defamation definition compares to other states, check out our Complete Guide to Online Defamation Law.

How Does District of Columbia Defamation Law Define Defamation Per Se?

Also referred to as ‘libel per se’ or ‘slander per se’ – depending on the form in which the defamatory statement was communicated – defamation per se recognizes that certain types of statements about a plaintiff are so harmful and inflammatory, that the plaintiff need not prove actual damages.

The District of Columbia considers any written or printed statement that falsely accuses someone of committing a crime to be defamation per se.

Let’s take a look at an example where a Washington, D.C. court did not find defamation per se.

• Child neglect: A defendant’s publication of a letter reporting a mother’s alleged neglect of her 16-year-old daughter to the D.C. government did not constitute libel per se, because the accusation did not impute the commission of a crime by the mother. Id.

Defamation Per Quod

While U.S. and state defamation law acknowledges certain statements as so inherently defamatory that proving damages need not be required, all states will require a plaintiff to prove the defamatory nature of an alleged statement via supporting evidence in cases which do not fall under defamation per se. Such legal doctrine is called ‘defamation per quod’.

Unlike libel and slander per se, defamation per quod does not presume damages for the plaintiff, and is typically associated with the remedy of special damages – due to the fact that plaintiffs are required to prove they suffered a special harm or damage, and with supporting evidence.

Unlike most other U.S. states and their respective defamation laws, there’s virtually no information on the per se/per quod distinction in Washington, D.C and even less information on per quod actions alone in D.C.

What is Defamation by Implication?

In 1990, a Washington D.C. circuit court outlined and defined the parameters of defamation per se as, “If a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory interference can reasonably be drawn, libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.” White v. Fraternal Order of Police, 909 F.2d 512, 520 (D.C. Cir. 1990).

A 2013 ruling affirmed the above, noting that even if conveying only true facts, a communication can be defamation by implication if, “by the particular manner or language in which the true facts are conveyed, the communications supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference.” Armstrong v. Thompson, 80 A.3d 177, 184 (D.C. 2013).

Furthermore, the allegations must leave no doubt that the statements are ‘of and concerning’ the plaintiff.

Defamation By Implication Must Be ‘Of and Concerning the Plaintiff’

Specifically, where a plaintiff is not identified by name, he must allege and prove the special circumstances that show the defamation applies to him.

Now, let’s take a look at 6 fundament examples of what the District of Columbia has found to constitute defamation.

6 District of Columbia Defamation Examples

• Racial bigotry: An accusation of racial bigotry was found by a D.C. court to constitute defamation.

• Distorting evidence: An accusation of falsifying and distorting evidence was considered defamation in the District of Columbia.

• Unjust enrichment: A defendant who accused a coach of enriching only himself by selling worthless protein supplements was found to be defamation.

• Paid testimony: An accusation that a research physician was paid much more per day to testify than most experts was ruled to be defamation by a Washington, D.C. court.

• Substandard journalism: A statement that an investigative journalist engaged in substandard journalism by utilizing unreliable sources and improper reporting techniques was ruled that it “could be defamatory.” Houlahan v. World Wide Assoc. of Specialty Programs & Schools, 2006 U.S. Dist. LEXIS 71858, *16-17 (D.D.C. Sept. 29, 2006).

• Racial supremacy: Indications that a group had published theories of racial supremacy and genetic selection – and that those publications were sold by the American Nazi Organization – were considered defamatory by a D.C. court.

Defamation Law Fact: Due to the United States’ tenured upholding of free speech and the First Amendment, the U.S. is considered a pro-defendant defamation jurisdiction, while European and other Commonwealth countries (U.K., Australia, Canada) are generally considered pro-plaintiff.

Important Washington, D.C. Defamation Requirements & Formalities

Almost all U.S. states will differ substantially in the required formalities and procedures for a plaintiff bringing a defamation claim. In this section, we’re going to take you through Washington, D.C.’s jurisdictional reach, where libel and slander defendants may be sued, the requisite statute of limitations for filing a defamation claim, and more.

Do District of Columbia Courts Have Jurisdiction Over Out-of-State Defamation Defendants?

Simply put, yes. Washington, D.C. courts have jurisdiction over out-of-state defamation defendants, however, their reach is limited to certain situations.

Below are two cases where District of Columbia courts found there to be reasonable grounds for exercising jurisdiction over a defamation defendant and two cases where they did not find reasonable grounds for jurisdiction.

California

A defamation action against a California Internet gossip columnist who reported in his Internet column that the plaintiff abused his wife, was not dismissed for lack of personal jurisdiction because:

• The Internet site was interactive,
• Accessible to, &
• Used by D.C. residents.

Furthermore, the columnist had sufficient non-Internet related contacts within D.C. Blumenthal v. Drudge, 992 F.Supp. 44 (D.D.C. 1998).

Book Review

Personal jurisdiction over out-of-state defendants was appropriate when a book review was distributed in D.C. and injury took place there, as well as the plaintiff having maintained his professional offices in the District of Columbia.

No Contacts

A D.C. court lacked jurisdiction over a libel defendant where the defendant:

• Had no office in D.C.,
• Had no telephone in D.C.,
• Had no mailing address in D.C., &
• Did not conduct business in the District of Columbia.

Statute

When claims for defamation arise under state law, a D.C. defamation plaintiff could not rely upon 28 U.S.C. § 1331 as a basis for jurisdiction.

So, now that we’ve addressed several cases explaining when District of Columbia courts may exercise jurisdiction over out-of-state libel defendants, let’s turn to the choice of law in which a court must apply in the particular case.

Choice of Law: Three Common Choice of Law Tests

Choice of law is an essential procedural step in the litigation process where the varying legal jurisdictions where the claim may be brought are assessed, ultimately resulting in a court’s determination of the “proper law.”

When determining which state’s laws should apply to the matter at hand, courts will typically look to where the tort was committed, where a contract was enforced or signed, and where a marriage between two persons was officiated.

Keep in mind that the above are just several examples of what a court may find to be exhaustive and non-exhaustive.

Below are three fundamental tests which are employed by U.S. courts in order to determine the proper states’ laws to apply:

• The First Restatement “Traditional Test”: In applying the traditional test, courts look to the cause of action. And, in cases of fraud and tort law, the court will apply the law of the location where the wrong or tort took place. Generally, the last event prior to the injury suffered by the plaintiff will be the place of the tort or wrong.
• The Second Restatement “Significant Relationship Test”: The significant relationship test requires courts to look to the most relevant laws and policies of each state or jurisdiction, their interest in the matter’s adjudication, simple underlying policies behind their laws, and the ease of application and enforcement of a judgement.
• “Governmental Interest Analysis” Test: Most states are incorporating – or have already started doing using – the governmental interest analysis test, which looks to the site where the injury occurred, where the conduct which caused the injury occurred, both parties and their domicile or residence, and the most central location of the parties’ relationship. Specifically, when analyzing the above factors, courts will utilize a three-pronged test where they: (1) compare each state and jurisdiction’s substantive law, (2) determine each state’s legitimate interest, and (3) assess which state’s interest would be most impaired if the laws were not applied.

Below are six cases where District of Columbia courts applied various choice of law tests and their reasoning:

• In a 1984 defamation case, a D.C. court applied the law of the place where the plaintiff suffered injury by reason of loss of reputation because it was the most significant contact.
• A District of Columbia court applied the substantive law of D.C. in a defamation case where the plaintiff lived and worked there, alleging that she was most injured there.
• In Armenian Assembly of America, Inc. v. Cafesjian, 597 F. Supp. 2d 128, 137 n.4 (D.D.C. 2009), the court applied D.C. defamation law because the parties were located in D.C. and each of the alleged defamatory statements appeared to have been issued from the District of Columbia.
• Pennsylvania law was applied in one defamation case because the plaintiff was domiciled there and the wire story was also published there.
• A District of Columbia court applied the “interest analysis” approach under the Second Restatement Conflicts of Law, holding that Missouri law applied to a false light issue because the personal nature of such a claim made the most significant contact the domicile of the plaintiff at the time of the injury – while D.C. law applied to the defamation claim because the conduct and a portion of the injury to the plaintiff’s reputation occurred there.
• While applying Maryland law, a D.C. court refused to recognize a U.K. judgment where the foreign libel standards were repugnant to the public policies of the U.S.

Note that U.S. writers and publishes are protected from the enforcement of foreign libel judgments which do not align with the U.S. Constitution’s First Amendment, and in 2010, then President Barack Obama passed the SPEECH Act codifying such.

Such law is based on the Libel Terrorism Protection Act (aka “Rachel’s Law”) which was passed in 2008.

Now that we’ve learned where you can sue defamation defendants, the extent of D.C. courts, and the various cases where the District of Columbia applied one of the above three choice of law tests, let’s turn to Washington D.C.’s requisite defamation statute of limitations and how it compares to several other states’.

Online Defamation Tip: In order to strengthen your online presence and push negative and defamatory search results down in Google, consider (1) starting a blog and frequently updating it, (2) making your social media profiles public, (3) openly commenting on news websites under your social media profiles, and (4) interlinking all your various online accounts.

District of Columbia Defamation Statute of Limitations

A statute of limitations is a limiting time frame and mechanism constructed by law to limit a plaintiff’s ability to bring a lawsuit after a certain amount of time has lapsed. Statutes of limitations exist to prohibit and prevent plaintiffs from bringing frivolous claims or claims years down the road.

Video: What is the Statute of Limitations for Defamation in the U.S.?

Watch

For example, should a defamation plaintiff fail to bring their libel action within their respective state’s outlined statute of limitations, then they will likely be prevented from ever having it go to court and it may be dismissed altogether.

So, what’s the policy behind a statute of limitations? Efficiency.

More specifically:

• Reasonable diligence: As noted above, statutes of limitations are meant to ease an already clogged and bogged down legal system. Having a statute of limitations in place encourages plaintiffs to bring their defamation (or any) action within a reasonable and prompt manner.
• Preservation of evidence: Delaying in commencement of a legal action can not only result in the loss or destruction of evidence, but an unavailable plaintiff as well.
• Prevent more “cruelty than justice”: Simply put, statutes of limitations prevent more “cruelty than justice” by giving each party sufficient time to prepare and proceed with their respective claims.

Under District of Columbia defamation law, defamation plaintiffs must bring their claim within one-year.

Where other torts with longer limitation periods arise out of the alleged libel, the one-year period will apply in D.C.

But, when does this actual one-year time period start?

District of Columbia Discovery Rule

District of Columbia defamation law employs the discovery rule – which states that a claim will not accrue for statute of limitations purposes until a plaintiff has discovered or reasonably should have discovered all of the essential elements of the cause of action.

Note that the discovery rule is inapplicable where defamation is published by a mass media defendant.

However, a D.C. Circuit Court applied the discovery rule when allegedly defamatory emails were sent to “limited” recipients that did not include the plaintiff.

And, while a claim will arise on the date the allegedly defamatory statement is published, one court has suggested that they might be willing to adopt the discovery rule where the statement is inherently undiscoverable by the plaintiff.

Affecting the tolling of the District of Columbia’s defamation statute of limitations is a popular legal doctrine known as the ‘single publication rule’.

What is the Single Publication Rule? How Does It Affect Defamation Statutes of Limitations

The single publication rule is a legal doctrine which ultimately limits the scope of a plaintiff’s libel or defamation claim against a publisher. Simply put, under the single publication rule, defamation plaintiffs may only assert one claim for every mass defamatory communication or publication.

The reasoning?

To prevent plaintiffs from bringing multiple lawsuits for every subsequent defamatory communication or publication arising out of the original publication. As we mentioned above, allowing plaintiffs to bring multiple defamation claims for the same publication would result in even further clogging of our judicial system.

It’s important to understand that the single publication rule applies to the initial communication and publication, and not to any subsequent publications which contain material modifications or creative content – such will constitute a ‘republication’ and toll an entirely new statute of limitations.

The District of Columbia follows the single publication rule.

Because the statute of limitations runs from the date of the original publication, any subsequent sale or delivery of a copy of the publication will not create a new cause of action. Wilson v. Prudential Fin., 2004 U.S. Dist. LEXIS 27691 (D.D.C. Nov. 9, 2004). But, in the case of a single, integrated publication of a periodical or edition of a book or similar aggregate communication; new editions or rebroadcasts will be considered new publications.

Copies of original defamatory statements and publications will still be considered part of a single publication, however, republication in a new edition will create a new publication on the rationale that the intent is to reach a new audience.

In Washington, D.C., the single publication rule will apply to the posting of identical material by a third-party on the Internet, and the statute of limitations will run from the date of first publication, absent “republication” of the allegedly defamatory statement by updating it or taking steps to expand the audience for it.

Thus, the statute of limitations in Internet cases should run from the date of first posting, absent some modification that triggers “republication.” Jankovic v. International Crisis Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007).

Online Defamation Removal Tip: When confronting online defamation, it’s important to preserve all evidence you can. At Minc Law, we recommend screenshotting any defamatory or malicious online posts or comments, and having a trusted friend or family member do so as well. Doing so will ultimately strengthen your claim and refute any arguments you tampered with the evidence.

Washington D.C. Statute of Limitations vs. Other U.S. States

Generally, most U.S. states have a one to two year statute of limitations for libel and slander actions. For example, below are several other U.S. states and their respective defamation statutes of limitations.

As mentioned above, libel and slander actions will likely differ in their statutes of limitations time-frames, and slander actions are usually required to be brought much earlier.

If you’re a resident of the District of Columbia or any U.S. state and have been the victim of libelous and slanderous attacks, the internet defamation lawyers of Minc Law are here to fight for your reputation.

At Minc Law, we know the ins and outs of defamation law, and have secured hundreds of defamatory online removals and takedowns – and all for a flat, reasonable fee. We’ve litigated in over 19 states and three countries, and have worked tirelessly with website administrators, content managers, and third party arbitration firms to secure swift and permanent removals.

Reach out today to schedule your free, initial no-obligation consultation with an intake specialist by calling us at (216) 373-7706, or you can fill out our contact form online.

Public vs. Private Defamation Plaintiffs: Which One Are You?

When dealing with libel, slander, and other defamation claims, it’s important to understand that the legal rights and remedies for persons may greatly differ due to one’s public or private status. For example, public figures have either voluntarily or involuntarily availed themselves to public comment, criticism, and discussion, so they are tasked with a stricter burden of proof they need to meet when bringing a defamation claim.

In this section, Section 3, we’re going to address the history behind the differentiation between public and private persons’ rights in defamation law, how the District of Columbia treats both plaintiffs, fundamental differences, and much more. And, you might just be surprised to learn which category you fall in.

First, why is there a need to distinguish between private and public defamation plaintiffs?

In the 1964 landmark case of New York Times Co. v. Sullivan, the United States Supreme Court shaped the present day burdens of proof for both public and private plaintiffs ruling that in order to further “uninhibited debate of public issues,” there should be a clear distinction between rights.

• Private Persons/Plaintiffs: Most people reading this will fall under the category of private person or plaintiff, as they have not availed themselves (voluntarily or involuntarily) to public criticism and comment. Because private persons have not opened themselves to the entire world or general public, they have a lesser burden of proof to meet when bringing a defamation claim (after all, they didn’t ask to be thrust into the public sphere) and are only required to prove a defendant acted with ordinary negligence when communicating or publishing a defamatory statement.
• Public Persons/Plaintiffs: Think of the Hilary Clintons, Justin Biebers, and Celine Dions of the world. These people are public figures and plaintiffs, as they HAVE availed themselves to public scrutiny, comment, and criticism. It’s in our society’s best interest to be able to openly debate and discuss hot topic issues surrounding public figures, therefore the burden of proof is much stricter for public persons bringing a libel or slander action. Public persons must prove a defendant acted with actual malice or reckless disregard when communicating or publishing a defamatory statement.

The District of Columbia follows the defamation standard established in Gertz v. Robert Welch, Inc., which actually widens the scope of libel and slander plaintiff to four (4) core types.

• Private Plaintiffs,
• Public Officials,
• General Public Figures, &
• Limited-Purpose Public Figures.

To understand the differences between all four plaintiffs established in Gertz, below is a comparison table, breaking down their definition and required burdens of proof.

Defamation Removal Fact: If you’ve been the victim of online defamation on a user-generated content platform (think forums, bulletin boards, and social media websites), it’s important to recognize that most UGCs are protected under a controversial piece of legislation known as the Communications Decency Act – therefore, your best bet in holding someone accountable for online defamation is by pursuing the individual poster.

In regards to limited-purpose public figures, a D.C. court first followed the principles set forth in Gertz in order to determine whether a party (the president of the second largest consumer cooperative in the country) was a public figure – ultimately finding that he in fact was.

Subsequently, a D.C. court – relying on Waldbaum – established a three (3) part test to determine whether a person is a limited-purpose public figure in the case of Clyburn v. News World Communications, Inc., 903 F.2d 29, 31 (D.C. Cir. 1990), requiring that:

• There is a public controversy,
• The plaintiff must have played a sufficiently central role in it, &
• The alleged defamatory statement is germane to the plaintiff’s participate in the controversy. See also Jankovic v. Int’l Crisis Group, 72 F.Supp. 3d 284 (D.D.C. Nov. 4, 2014).

Now that we have the definitions out of the way, let’s take a look at several examples of public and limited-purpose public figures.

10 Examples of Public Figure Defamation Plaintiffs

• Corporation president: The President of Mobil Corporation, was considered a public figure, especially after he thrust himself and the company into the center of a public debate.
• Well-known accountant: An accountant involved with the presidential reelection committee was ruled to be a public figure in Washington, D.C..
• Insurance company president: An insurance company president was found to be a public figure in the District of Columbia.
• Murder case: A criminal defendant in a highly publicized murder case was determined to be a public figure in D.C.. Donaldson v. Washington Post Co., 3 Media L. Rep. 1233 (D.C. Super. Ct. 1977).
• Sting operation: A prominent individual in a “sting” operation was ruled to be a public figure.
• Consumer advocate: A Washington, D.C. court considered a consumer advocate to be a public figure.
• Campaign: A District of Columbia court found an individual active in a campaign to be a public defamation figure.
• Strong political ties: An individual who had strong political ties and had done extensive writing was considered a public figure under Washington D.C. defamation law. Waksow v. Associated Press, 462 F.2d 1173 (D.C. Cir. 1972).
• Union official: District of Columbia defamation law ruled a union official to be a public figure in a 1976 case.
• Weight-lifting coach: A D.C. court determined a weight-lifting coach to be a public figure for defamation purposes.

8 Examples of Limited-Purpose Public Figure Defamation Plaintiffs

• Legal activism: A plaintiff who, through writings, actively tried to influence the outcome of the controversy about self-representation and legal activism was considered a limited-purpose public figure in a libel case concerning a book review on that subject.
• Public contractor: A plaintiff who was a public contractor with numerous city contracts as well as many social contacts with city officials was ruled to be a public figure for limited purpose of commentary on his involvement over a death and possible drug use or dealing by city officials.
• Human rights activist: A person who described himself as a prominent activist for human rights in the Soviet Union was determined to be a limited-purpose public figure for purposes of his article about the composition of Russian personnel hired by Radio Free Europe/Radio Liberty.
• Child custody controversy: A parent involved in a child custody controversy spanning nearly ten years of court battles – with press and congressional involvement, over 1,000 articles published, and coverage in at least sixty-five TV and radio spots was ruled to be a limited purpose public figure in a suit over a docudrama about custody disputes.
• Staged photographs: A plaintiff photo journalist who voluntarily injected himself into a controversy over a publication of allegedly staged photographs raising issue in an Internet posting, with other journalists, and which was well-publicized, was considered a limited-purpose public figure by a D.C. court.
• First female F-14 pilot: A female plaintiff was held to be a voluntary limited-purpose public figure where her voluntary decision to become one of the first female F-14 pilots gave her special prominence in the controversy about women in combat.
• Russian businessmen: Prominent Russian businessmen were held to be limited-purpose public figures with respect to articles about their business dealings.
• Investigative journalist: An investigative journalist was held to be a limited-purpose public figure by a District of Columbia court.

Now that we’ve gone through numerous cases providing a better picture of public and limited-purpose public figures, let’s take a look at several cases Washington D.C. courts did not find a plaintiff’s status or availment to amount to public figure status.

5 Examples of Non-Public Figures (Private Persons/Plaintiffs)

• A son of the president of Mobil Corp was not found to be a public figure under Washington D.C. defamation law.
• An attorney no longer engaged in public activities was not considered a public figure or limited purpose public figure in D.C..
• An individual initially arrested for homicide was not found to be a public figure.
• A witness to a murder was not determined to be a public figure under District of Columbia defamation law.
• An individual employee involved in corporate fraud who remained virtually anonymous until the alleged defamatory report was published was not ruled to be a public figure.

Issues of Private & Public Concern

Just as there are different burdens of proof to be met for plaintiffs depending on their status in the community and public eye, differing burdens of proof also exist for certain types of issues – public and private issues. For example, there are certain issues which should be discussed and commented on publicly, without citizens or journalists fearing legal repercussion. Ultimately, differing burdens exist in order to promote a highly democratic and open society, where contentious and hot topic issues can be discussed with ease, and without fear of litigation.

In Washington D.C., a private figure plaintiff bringing a defamation lawsuit must prove that the defendant was AT LEAST negligent with respect to the truth or falsity of the allegedly libelous or slanderous statements.

Public officials, all-purpose public figures, and limited-purpose public figures must however prove that the defendant acted with actual malice.

Finally, a public controversy is a dispute that has received public attention because its ramifications would be felt by persons who are not direct participates. Note that in public controversies, a “general concern or interest will not suffice,” along with the fact that the issue is newsworthy in itself – as courts must ensure that they (judges) do not become “censors of what information is relevant to self-government.” Parsi v. Daioleslam, 595 F. Supp. 2d 99, 105 (D.D.C. 2009).

If you’re unsure of whether you’re classified as a public or private figure, or unsure about whether an allegedly defamatory statement is of private or public concern, we strongly recommend you contact an experienced defamation removal attorney to assist you in the identification and removal process.

Defamation Removal Tip: Online defamation is like a wildfire, the longer you let it sit and spread, the more damage it’s going to do. Proactivity is important when monitoring your online reputation – not reactivity.

Common Defenses to Defamation in the District of Columbia

Even if a communication or statement IS defamatory, defendants may still skirt liability due to relying on a popular defense or privilege – ultimately avoiding defamation liability and exercising their legal rights.

Below are some of the most common defenses to defamation and defamation of character actions in the District of Columbia and United States.

• Opinion,
• Truth/Falsity,
• Privilege (Absolute, Qualified, Fair Report, Statutory, Neutral Report),
• Libel-Proof Plaintiff Doctrine,
• Wire Service Privilege/Defense.

First, let’s take a look at possible the most popular and commonly used defense to defamation claims in Washington, D.C. and the United States – the defense of opinion.

The Defense of Opinion

It’s important to remember that libel, slander, and defamation of character all deal with the false assertion of fact, therefore, if a communication or statement is simply of one person’s opinion and may not be proved true or false, then it will likely be considered opinion.

D.C. defamation of character law acknowledges that, “[S]statements of opinion are not automatically immune from liability for defamation” and the relevant inquiry is “whether a statement makes direct or implicity factual assertions.

Furthermore, assertions of opinion on matters of public concern will only receive full constitutional protection if they do not contain a probably false factual connotation. Even when a statement is considered ‘per se opinion’, the question to be looked at is whether the person has made an assertion that can reasonably be understood as implying provable facts.

So, what happens when a statement containing opinion also contains provable defamatory facts?

District of Columbia defamation law recognizes that an opinion which “asserts provably false and defamatory fact” is not deserving of “the protections of the Constitution.” Parnigoni v. St. Columba’s Nursery School, 681 F.Supp. 2d 1, 18 (D.D.C. 2010).

Ultimately, determination of whether a statement is opinion or fact is a matter of law for the court to decide using constitutional principles.

Now, let’s take a look at several examples of what does and does not constitute opinion in the District of Columbia.

• Illegal drugs: Assertions – whether express or implied – that someone used illegal drugs was considered an objectively verifiable fact so that the defamatory implications were not entitled to constitutional privileges.
• Smoking marijuana: “I think he’s inhaling,” was held to be an opinion and rhetorical hyperbole, and not a factual assertion that the litigant was smoking marijuana.
• Legal arguments: Statements describing a plaintiff lawyer’s arguments as “vague, confusing, and incomplete” were non-actionable expressions of “genuine opinion” under D.C. law.
• Al Capone: Calling one’s business adversary “the Al Capone of London” was protected opinion in Washington, D.C.
• Anti-nuclear protesters: Newspaper editorials stating that anti-nuclear protesters were “bums,” “pitiable lunatics” and “insane,” and that signs erected by protesters were “gibberish,” “un-American,” and “trash,” were protected opinion under D.C. defamation law.

So, what exactly have Washington, D.C. courts ruled to be verifiable fact? Let’s take a look.

Truth/Falsity: Is a Statement Verifiable as Fact?

As noted above, defamation actions are centered around one party communicating or publishing a false assertion of fact to another party – so, if a statement may be proved true or false, then it will likely be actionable under United States defamation law and Washington D.C. defamation law. We know the truth hurts, but that doesn’t mean it should be censored.

Under District of Columbia defamation law, truth is a complete defense to libel actions.

But, what happens if a statement is only partially true?

Statements which are not entirely true, but contain the crux of gist of the sting of a truthful statement are referred to as statements of “substantial truth.” In D.C., substantial truth of a publication constitutes truth, and truth (as noted above) is an absolute defense to defamation claims if the statements are “substantially true.” Jolevare v. Alpha Kappa Alpha Sorority, Inc., 521 F.Supp. 2d 1, 13 (D.D.C. 2007).

Substantial truth will occur when “the gist of the statement is true or that the statement is true or that the statement is substantially true as it would be understood by its intended audience.” Ye v. Holder, 644 F. Supp. 2d 112, 117-18 (D.D.C. 2009).

So, what about the concept of falsity?

Falsity and defamatory meaning are distinct elements of defamation and are considered separately. To show falsity, a plaintiff must demonstrate either that the:

• Statement is factual and untrue, or
• An opinion based implicitly on facts that are untrue.

Privilege Under United States Defamation Law

Think of privilege as a legal right to do or say something. Although the term might sound complex and confusing, it’s actually relatively straightforward. Specifically, privilege refers to a person’s legal right, entitlement, or enjoyment to communicate or publish a statement – even if it’s defamatory.

Like most other legal principles and doctrines we’ve mentioned in this blog post, privilege exists in order to promote uninhibited debate and discussion. Without privilege, our democracy would slowly erode, with our core decision making processes (legal, political, judicial, social, economic) unable to discuss hot-topic issues in furtherance of developing and refining policy. Surely, without it, our present laws and protections would not be as comprehensive as they are now.

As a D.C. court opined, as a general rule, “the issue of privilege antecedes the question of whether a communication is capable of defamatory meaning.” Hargrave v. Washington Post, 2009 U.S. Dist. LEXIS 39918, *2-3 (D.D.C. May 12, 2009), aff’d, 365 Fed. Appx. 224 (D.C. Cir. 2010).

Simply put, privilege comes first, and then the analysis of whether a statement is defamatory comes later.

Let’s turn to five of the most common privileges relied on in United States defamation law and District of Columbia defamation law.

• Absolute,
• Qualified,
• Fair Report,
• Statutory, &
• Neutral Report.

Absolute Privilege: The Most Comprehensive of All Privileges

Absolute privilege is the most comprehensive of all defamation privileges, and is the absolute and unqualified right granted to a party to publish or communicate a statement in a specific situation – even if the statement is defamatory. Absolute privilege is so far reaching, that it even covers speakers who communicate or publish statements with actual malice or reckless disregard.

What are common situations where persons are granted absolute privilege?

As absolute privilege is all-encompassing, it is typically granted in our judicial, legislative, political, administrative, and other official decision making processes – as it allows for open debate, comment, and criticism, without fear of legal repercussion.

In D.C. judicial and legislative proceeding privileges are recognized.

In fact, Washington D.C., has long recognized an absolute privilege for “statements made preliminary to, or in the course of, a judicial proceeding, so long as the statements bear some relationship to the proceeding.” Such privilege applies to both attorneys and parties.

“The judicial proceedings privilege does not require an ‘actual outbreak of hostilities’ and attaches to statements made in settlement negotiations before a lawsuit is filed.” Teltschik v. Williams & Jensen, PLLC, 683 F. Supp. 2d 33, 54 (D.D.C. 2010).

Government Officials

In determining if a government official has absolute immunity under D.C. defamation law, if the act is of the kind committed by law to the person’s official responsibilities, or is even related to those responsibilities, then it falls within the protected perimeter.

Qualified Privilege: Absolute Privilege’s Second-in-Command

Think of qualified privilege as absolute privilege’s younger sibling, or second in command. It’s typically referred to as “Common Interest Privilege” and is less comprehensive than absolute privilege, as it attaches in fewer circumstances and with a more narrowed scope. Furthermore, qualified privilege is not granted to persons who communicate or publish a defamatory statement with actual malice.

Simply put, qualified privilege is a right, entitlement, or joy to publish or communicate a statement in a certain situation and to a specific person or audience. Generally, such persons are persons in positions of trust or authority. Oftentimes, such person or audience will also have a reciprocal interest in receiving such information.

In Washington, D.C., even foolish and prejudiced comments are protected.

The D.C. Circuit has recognized a “common interest” privilege shielding otherwise defamatory statements made in good faith, and in which the communicator has a common interest with the listener.

How do persons lose the protection of qualified privilege?

District of Columbia law acknowledges that qualified privilege is lost by a showing of malice – defined as the conscious indifference to the rights of the subject or lack of reasonable belief in the truth of the statement.

While one might think communicating a statement with ill will would likely be grounds for forfeiting privilege, that’s not always the case. A D.C. court ruled that the existence of ill will does not forfeit the privilege if the primary purpose is to further the interest which is subject to the qualified privilege.

Qualified privilege will also be lost in cases where the publication is excessive or made outside of normal channels. Simply put, if someone is exceeding the original scope of publication and really going out of their way to publish it in unorthodox channels, then they will lose the protection of qualified privilege.

Fair Comment Privilege

Also providing protection for speakers concerning specific types of statements, fair comment privilege enables persons to openly comment on public figures and public officials without fear of legal repercussion. Fair comment guarantees freedom of the press, as long as the statements aren’t communicated or published with spit, ill will, or an intent to harm.

In Washington, D.C., the existence of the fair comment privilege is determined as a matter of law.

Under District of Columbia defamation law, fair comment privilege is applicable even if the facts upon which the opinion is based are not included along with the opinion.

While fair comment privilege grants quite broad freedom to persons and organizations to openly comment on public officials, figures, and matters of public interest, it does NOT extend to false facts. Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 87 (D.C. 1980), cert. denied, 451 U.S. 989 (1981). And, the facts upon which the comment is made need not appear in the publication.

Finally, fair comment privilege may be unavailable when the subject does not involve a public controversy or a matter of public interest.

Now that we’ve gone over several privileges that protect persons who comment openly on public persons and figures, let’s turn to a form of privilege which extends to persons who rely on official and government reports and documents – fair report privilege.

Fair Report: Instilling Confidence in Government & Official Reports

Fair report privilege is fundamental for a free and thriving news media, as it authorizes persons and organizations to publish official reports and documents set forth by the government and other administrative bodies without fear of litigation. However, in order for fair report privilege to extend to persons and organizations, they must – in good faith – rely on the reports, without materially altering them in any way.

Fair report is like all aforementioned legal principles, to promote trust in our government decision making bodies and processes. Think about it, what type of society would we live in if persons and organizations were sued for relying on an official report published and disseminated by the government? Persons and media bodies relying on such reports shouldn’t be punished for exercising good faith trust.

D.C. courts recognize a qualified privilege for fair and accurate reports concerning matters in official reports or proceedings. Such privilege is broadly construed and applies to proceedings before any:

• Court,
• Agency,
• Executive, or
• Legislative body.

Furthermore, it applies to reports put forth by any official proceeding or action taken by an officer or agency of government.

“Under applicable [D.C.] law, a defendant must ‘clear two major hurdles’ to qualify for the fair report privilege. It must show, first, that its publication was a ‘fair and accurate report’ of a qualified government source and, second, that the publication properly attributed the statement to the official source.” Jankovic v. Int’l Crisis Group, 593 F.3d 22, 26 (D.C. Cir. 2010).

Fair report privilege is not absolute, and will however fail if:

• The article is not fair and accurate,
• It is not attributed to an official source, or
• It is published with actual malice. Q Int’l Courier, Inc. v. Seagraves, 1999 U.S. Dist. LEXIS 23355 (D.D.C. Feb. 26, 1999).

Statutory Report: It’s the Law

While most legal privilege has been codified through judicial precedent and legal cases, there are several core privileges that states choose to codify in their laws.

However In D.C., there are no unique specific statutory privileges.

There have been several cases which affirm there is some sort of codified privilege, whether it by the state level or federal level.

• In Council on American Islamic Relations v. Ballenger, 444 F.3d 659, 661 (D.C. Cir. 2006) (per curiam), a D.C. court held that a congressman was immune for his statement that the plaintiff was the “fundraising arm for Hezbollah” because the statement was made within the scope of the congressman’s employment and the United States had not waived its sovereign immunity against suit.
• Common law claims of libel are barred by the Federal Tort Claims Act (FTCA) as amended by the Federal Employees Liability Reform and Tort Compensation Act (FELRTCA), which provides absolute immunity for federal employees while acting within the scope of their employment.
• Certain international organizations, such as the World Bank, are afforded absolute immunity against defamation suits under the International Organization Act of 1945.

Neutral Report: A Limited Exception

Commonly referred to as “neutral reportage,” neutral report privilege is a Common law privilege and limited exception to republication – which holds that any party who republishes a defamatory statement is equally as culpable and liable as the original publishing party.

Neutral report privilege exists in order to protect news organizations, journalists, and other media organizations, as it’s common to report on statements made by public and high-profile figures about other notable figures. And, certainly the general public has an integral interest in hearing such statements.

There’s not much case law on neutral reportage in Washington, D.C., however one case has previously held it inapplicable to private figures.

Furthermore, news reports were immune from defamation liability under neutral reportage. In re United Press Intern, 106 B.R. 323 (D.D.C. 1989).

Finally, in White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990), a District of Columbia court noted that it had not yet recognized the neutral reportage privilege – but did seem to view it favorably.

To recap, below is a chart comparing the above privileges utilized under D.C. defamation law.

Defamation Law Fact: Veggie libel laws, also commonly referred to as food libel laws and food disparagement laws, are defamation laws enacted in 13 states which protect food producers and manufacturers from libelous and defamatory statements about their products by ultimately making it easier for them to bring a defamation action.

Libel-Proof Plaintiff Doctrine: Sometimes a Reputation is Just That Bad

Sometimes a person is so reviled in their community that a defamatory statement or publication made about them has zero effect on their overall reputation and standing in the community. Such person is referred to as a libel-proof plaintiff, and such doctrine usually occurs in smaller communities due to the heightened familiarity of the community with a person’s reputation.

Some common examples of libel-proof plaintiffs include persons who are habitual criminals or notorious drug dealers in a community.

Washington D.C. recognizes that plaintiffs can be libel-proof.

Wire Service Defense/Privilege: A Rarely Used & Outdated Defense

The wire service defense/privilege has become scarce over the years due to the advancement of technology and information dissemination. Specifically, the wire service privilege applies to news and other media organizations who rely on statements and communications received through a reputable wire service and later publish it.

District of Columbia courts recognize the wire service defense.

If you’re confused about whether you have an actionable claim for defamation of character, libel, or slander, contact the defamation lawyers of Minc Law now!

Washington D.C. defamation law – and defamation law in general – are highly nuanced areas of law and require an experienced defamation attorney to properly assess your claims or defenses. The internet defamation removal lawyers of Minc Law have litigated in over 19 states and 3 countries, and have secured hundreds of online defamation removals and takedowns – and all for a flat, reasonable fee.

Reach out today to schedule your free, initial no-obligation consultation with an intake specialist by calling us at (216) 373-7706 or by filling out our contact form online.

District of Columbia Defamation Damages

As noted in Section 1, defamation plaintiffs are required to prove they suffered damage or harm in order to succeed in their libel or slander action. Damages are awards – typically quantified in monetary form – which are granted to plaintiffs in order to reimburse them for the damage or injury suffered as a result of a defamatory statement.

In the District of Columbia, defamation damages are generally broken down into four core types:

• Presumed Damages,
• Special Damages,
• Actual Damages, &
• Punitive Damages.

Presumed Damages & Defamation Per Se

Look back to Section 1, where we addressed the legal principle of ‘defamation per se,’ and touched on how certain statements are so inherently defamatory and inflammatory, that a plaintiff need not prove damages – as they are presumed.

Under D.C. defamation law, courts will consider several factors before determining the amount of presumed damages, such as:

• The reputation of the defamed party prior to the defamation;
• The probable, as well as provable effect of the defamation on his/her profession;
• How widely the defamation was disseminated;
• The duration of the effect of the defamation, &
• Whether there has been a timely and effective retraction and apology.

D.C. courts will NOT consider the motive and purpose of the publisher when determining presumed damages.

Special Damages & Defamation Per Quod

Just as presumed damages are associated with the legal doctrine of defamation per se, special damages are associated with defamation per quod. As defamation per quod requires defamation plaintiffs to prove (with supporting evidence) the defamatory nature of the alleged statement, they must also prove the special harm or injury suffered.

Generally, plaintiffs will be required to prove which defamatory statement caused what damages, how it was communicated or published, and the exact type of harm or injury suffered.

In the District of Columbia, “A false allegation of criminal wrongdoing is defamation per se, requiring no showing of special damages.” Westfahl v. District of Columbia, 75 F. Supp. 3d 365 (D.D.C. Dec. 12, 2014).

Furthermore, defamation plaintiffs cannot rely merely on a showing of actual malice in order to prove allegations of special damages to one’s future earning capacity.

Special damages requires that little something extra in order to recover them.

Actual Damages & The Gertz Limitation

Also referred to as “compensatory damages,” actual damages are awarded in situations where a defamation plaintiff has proved they have suffered actual, tangible harm or injury.

The only remedy for libel or slander is an action for damages, NOT equity. Mazur. Szporer, 32 Media L. Rep. 1833 (D.D.C. June 1, 2004).

The Gertz limitation to “actual injury” includes all usual tort damages, such as humiliation and suffering.

So, how do plaintiffs obtain actual damages?

In order to obtain actual damages in Washington D.C., plaintiffs must prove an existence of proximate cause between the alleged harm and the defamatory statement.

In one particular case, a remitter (reduction) was ordered from over $500,000 to $60,000 when damages were shown to have possibly been caused by conduct other than the defendants.

Punitive Damages: For Those Who Act With Evil Motive

Commonly referred to as “exemplary damages,” think of punitive damages as awards which are meant to punish the defendant for egregious or malicious conduct when publishing or communicating a statement. They’re commonly utilized in cases of gross negligence, fraud, or deliberate violence.

Punitive damages may be award in the District of Columbia.

In order to recover punitive damages in Washington D.C., plaintiffs are required to prove there was:

• Outrageous conduct,
• Evil motive, or
• Careless indifference for the plaintiff’s rights.

Excessive punitive damages may unnecessarily chill First Amendment rights, but punitive damages may reflect factors such as counsel fees.

Finally, in cases involving matters of public concern, a private figure must prove actual malice in order to obtain punitive damages.

Washington D.C. Defamation Damages Comparison Chart

Defamation Law Tip: Remember, when approaching defamation, it’s important to look to the form in which it was communicated. To recap: libel concerns a false written or published statement to a third party, subsequently harming another’s reputation, while slander involved a spoken statement to a third party which causes harm to another’s reputation. Depending on the form in which the defamation was conveyed, there will likely be differing statutes of limitations which ultimately guide when you must commence your defamation action.

Now, let’s turn to some of the most frequently asked questions about United States defamation law and District of Columbia defamation law.

Washington D.C. Legal Protections for Anonymous Speech

With a bulk of defamation claims relating to online postings, comments, and articles, let’s take a look at the five-step test utilized by D.C. courts and applied to subpoenas in uncovering the identity of defendant’s publishing and communicating statements anonymously over the Internet.

In determining whether to permit the disclosure of an anonymous Internet speaker’s identity, D.C. courts apply a protective test. For example, in one state court case, as well as in one federal court case (both discussed in detail below), each require a substantial legal and factual showing by the plaintiff before ordering the unmasking of an anonymous defamation defendant.

Solers, Inc. v. Doe: Defamation & Software Privacy

In the case of Solers, a software developer sued a John Doe defendant – a fictitious defendant – for libel and tortious interference over an anonymous tip delivered to an industry watchdog group stating that the developer had engaged in software piracy.

Solers subpoenaed the group, seeking to reveal the anonymous defendant’s identity. On appeal, the D.C. Court of Appeals cited a protective standard for its lower courts to adhere to while emphasizing that a plaintiff “must do more than simply plead his case” in order to uncover the identity of an anonymous speaker who has defamed another online.

The test for unmasking online defamation defendants employed by the D.C. Court of Appeals nearly mirrors the test laid out in Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, 159 Cal.App. 4th 1154 (Cal. Ct. App. 2008), requiring courts to follow the subsequent five steps before ordering the identification of an anonymous or pseudonymous online speaker’s identity and information:

• Ensure the defamation plaintiff has adequately pleaded all the required elements of a defamation (or other) claim;
• Require reasonable efforts to contact and notify the anonymous or pseudonymous defendant that there has been a complaint filed and subpoena served;
• Delay action for a reasonable time to allow the libel defendant an opportunity to file a motion to quash;
• Require the plaintiff to proffer evidence which creates a genuine issue of material fact on each and every element of the claim that is within its control; &
• Determine that the information sought is important enough to enable the plaintiff to proceed with his/her defamation action/lawsuit.

In regards to the fifth (5th) prong of the test, the D.C. court acknowledged that they would not require a showing that the plaintiff had explored and exhausted alternative sources for the information, so long as the other four elements of the test have been satisfied.

The result?

The D.C. Court of Appeals remanded the case to the trial court for application of the test.

On remand, the D.C. trial court reluctantly ruled that the D.C. Court of Appeals’ decision required enforcement of the subpoena, because the appellate court had noted that Solers had properly pleaded damages. Nevertheless, the District of Columbia trial court noted its unease with enforcing the subpoena when Solers had admitted that it couldn’t identify lost business or customers from the alleged defamation – soo the trial court called for another appeal.

A second appeal was filed under the case of Software & Information Industry Association v. Solers, Inc., No. 10-CV-1523, where the D.C. Court of Appeals clarified a plaintiff’s burden when seeking to uncover an anonymous speaker’s identity, citing that the plaintiff must not only plead but produce evidence of damages that resulted “as a direct consequence” of the anonymous speaker’s action.

Internal costs that the plaintiff incurs as a result of the anonymous speech, such as expending resources to investigate the anonymous claims, will not suffice. Furthermore, the damages must be shown to exist independently of any action the plaintiff took to counteract the anonymous speech; reluctant customers, lost profits, or specific examples of impaired business reputation would be useful in showing the required damage.

Because Solers failed to show such evidence, the appellate court reversed the trial court’s order which enforced the subpoena.

Let’s take a closer look at the second case now.

Sinclair v. TubestockTedD & Barack Obama

In Sinclair v. TubeSockTedD, 2009 WL 320408 (D.D.C. Feb. 10, 2009), a District of Columbia federal district court quashed a subpoena seeking to identify three pseudo anonymous Internet posters and users.

It all started in 2008, after Sinclair published a YouTube video and blog claiming that he had engaged in sexual activities and done drugs with then-presidential candidate Barack Obama. In response, “TubeSockTedD” uploaded a video to YouTube stating that Sinclear was “Spreading lies about Obama. Subsequently, another Internet user who went by the name “mzmolly,” posted a comment on Democratic Underground.com, also claiming to have encountered Obama. And, a third party “OWNINGLIARS,” followed up with a comment on Digg.com accusing Sinclair of being a liar and that he was actually in a mental hospital when he claimed he met Obama.

In response, Sinclair filed a John Die defamation lawsuit against all three posters, seeking to identify them from their relevant Internet service providers (ISPs). To answer, the pseduoanonymous posters moved to quash.

A D.C. court granted the motion to quash, while dismissing the complaint in its entirety. It surveyed the First Amendment right to speak anonymously and held that, under either the Cahill or Dendrite standard, Sinclair was not entitled to request discovery of the three identities, because his complaint was facially invalid. Specifically, the court opined that Sinclair’s complaint did not plead facts necessary to establish the court’s subject matter jurisdiction over the case or personal jurisdiction over the pseudo anonymous defendants.

The court ruled that Sinclair’s defamation claims failed as a matter of law because he did not plead either:

1. Actual malice, or
2. Special damages.

And, because Section 230 of the Communications Decency Act protected “mzmolly” and “OWNINGLIARS” for “simply summarizing and reporting information obtained from” a third party.

In conclusion, the court ruled: “Where the viability of a plaintiff’s case is so seriously deficient, there is simply no basis to overcome the considerable First Amendment interest in anonymous speech on the Internet. Sinclair has provided no ground to do so here.” 596 F. Supp. 2d at 134.

Although the court quashed the subpoena and dismissed the complaint, it still refused to award both “mzmolly” and Democratic Underground sanctions against Sinclair because of the novel areas of law involved. Id. at 134 n.4.

Frequently Asked Questions (FAQ)

Q. Can District of Columbia defamation defendants retract, correct, or clarify defamatory statements before litigation?

A. In Washington, D.C., there is no retraction statute. However, an immediate retract may negate or mitigate any inference of actual malice.

A retract has the power to remove the defamatory implication of an article.

There is no duty to retract or correct a publication; even where grave doubt is cast upon the veracity of the publication after it has been released.

Q. Can Washington D.C. residents bring a libel or slander action against out-of-state persons?

A. Simply put, yes. However, it only extends in certain circumstances.

Some instances where Washington D.C. courts have exercised jurisdiction over out-of-state plaintiffs include:

• Where a book review was distributed in D.C. and injury took place there,
• Where a plaintiff maintained their professional offices in D.C.,
• Where a website was interactive, accessible to, and used by D.C. residents, &
• Where a columnist had sufficient non-Internet related contacts within D.C..

To read up further on Washington D.C. courts and their coverage over out-of-state defendants, check out Section 2.

Q. Has D.C. codified any criminal defamation laws in their books?

A. Yes, but it is no longer in place. D.C.’s criminal libel statute was repealed in 1982.

Q. What are SLAPP lawsuits? Does Washington D.C. have any Anti-SLAPP laws to combat them?

A. SLAPP stands for “strategic lawsuits against public participation” are are lawsuits that are brought against a party in order to burden, intimidate, censor, or otherwise scare them. Such suits are typically frivolous and looked down upon on by the legal community.

In order to combat these frivolous lawsuits, most states have Anti-SLAPP statutes which protect parties from such suits.

The District of Columbia Anti-SLAPP Act of 2010, D.C. Code § 16-5501, et seq. (the “Act), allows a party to file a special motion to dismiss any claim arising from an act “in furtherance of the right of advocacy on issues of public interest” within 45 days of the claim. Look to § 16-5501(1) for the definition of “an act in furtherance of the right of advocacy on issues of public interest; as well as § 16-5501(3) for the definition of an “issue of public interest.”

The Act also enables anonymous persons “whose personal identifying information is sought” to safeguard his identity by filing a “special motion to quash” a subpoena, if the claim arises from an act “in furtherance of the right of advocacy on issues of public interest.”

According to §§ 16-5502 and 16-5504, the filing of a special motion to dismiss or quash will stay discovery unless such targeted discovery will enable the plaintiff to defeat the motion and will not be unduly burdensome.

One important thing to note is that the Act conflicts with the Federal Rules of Civil Procedure and cannot be applied in a federal proceeding under diversity jurisdiction.

Note that the 2015 D.C. Circuit court decision in Abbas marked the first time in history a federal appellate court held that an Anti-SLAPP law did not apply in federal court.

Q. What is the doctrine of Prior Restraint? Does Washington D.C. recognize it?

A. Simply put, prior restraint is the government censoring of a publication or communication before it’s actually published.

The District of Columbia recognizes equitable relief in the form of an injunction requiring retraction of slander by government officials may be required in specific limited instances.

Furthermore, a mere threat of defamation is not actionable.

Q. What is Defamation Insurance? Do I Need It?

A. Defamation insurance is a form of insurance that generally comes as an extension to an existing insurance policy and protects parties from slander, libel, and other various tort claims. As there aren’t many actual defamation insurance policies, it’s typically covered under “excess liability coverage,” a policy where the original scope is extended.

Unless you engage in a high risk profession, such as journalism, news media, independent contracting, or blogging, you likely don’t need to purchase it.

You can read up further on defamation insurance and the various parties who need it by checking out our comprehensive post, “What is Defamation Insurance and Do I Need It?”

Work with the Defamation Lawyers of Minc Law Today!

If you’re a resident of Washington D.C. or any U.S. state and have been the victim of online defamation or other defamatory attacks, reach out to the internet defamation lawyers of Minc Law today!

At Minc Law, we boast a nearly 100% online defamation removal and takedown rate.

We know who to work with and how to work with them in order to secure swift and permanent removals, and have worked tirelessly with numerous website administrators, content managers, and third-party arbitration firms, securing hundreds of removals.

Here’s what you can expect when working with the defamation lawyers of Minc Law:

• Respect & Courtesy: We understand how overwhelming and invasive online defamation is, therefore we’re here to support you every step of the way. Take solace in knowing that we are always on your side and working towards your best interests. After all, your goals are our goals.
• Open Dialogue & Communication: Some lawyers go missing once the removal process has commenced. At Minc Law, we will stay in constant contact with you concerning the details of your removal and case.
• We Get Results: Just know that when employing the defamation lawyers of Minc Law, we get results. Businesses and websites respond to us, and we have a proven track record of securing defamation removals.

When it comes to suing for defamation, costs are a number one concern for our clients. While there is no one-size-fits-all answer for determining a defamation lawsuit’s total costs, there are several major factors that may impact the required budget to sue for libel or slander. If you are considering the option of filing a defamation lawsuit to stop libelous attacks to your reputation, we recommend checking out the video below to learn the stages of a defamation lawsuit and the unique factors that can affect costs.

Video: How Much Does a Defamation Lawsuit Cost? Cost to Sue For Defamation

Watch

If you are the target of defamatory attacks, we can help hold the perpetrators accountable. We fight for our clients using both litigation (lawsuits) and non-litigation alternative methods. Contact us today to schedule your free, initial no-obligation consultation with an intake specialist by calling us at (216) 373-7706, or by filling out our contact form online.

At Minc Law, we’re here to fight for your reputation.

★★★★★

“Minc was easy to contact and replied to my questions quickly and kept me up to date on my status. Communications was a bonus. Success with the outcome was icing on the cake.”

Daren G., Apr 14, 2020