Q: The local newspaper recently printed something about me that isn't true. Are they allowed to do this?
A: It depends. Generally speaking, a newspaper, television or radio station that publishes something untrue about a private citizen can be held liable for libel. Similarly, someone who says something untrue about you can be held liable for slander. The main difference between libel and slander is that libelous information is printed or broadcast, while slanderous information is spoken. Libel and slander are considered forms of "defamation" because they can injure a person's reputation. It may be difficult for you to win a suit against your local newspaper, however, because the media are protected by several privileges.
Q: What kind of privileges do the media enjoy?
A: For starters, the media enjoy rights of free speech guaranteed by the First Amendment to the U.S. Constitution. Therefore, a newspaper that publishes an editorial opinion, or someone else's opinion, cannot be held liable for defaming you. To be liable for defamation, a statement must be false and must concern a verifiable fact. In addition, in Ohio the Ohio Constitution provides even broader protection for opinion. Similarly, nobody can be held liable for publishing a true statement about you. It's important to note that a newspaper (or other media outlet) does not have to be 100% accurate in what it says about you; the statement just has to be substantially true. Whether or not something is substantially true will depend on the circumstances, but courts have explained that the media must be able to justify the "gist" or the “sting” of what they say about a person. If they cannot, they may be held liable for defamation.
Q: Can a newspaper or TV station report that I was arrested or that there is a warrant out on me?
A: Yes. Under Ohio law, the media are allowed to publish reports on arrests, warrants, indictments, and anything that occurs in open court, unless their report is unfair or they published the report knowing it was not true or without paying attention to whether it was true or not. If you bring a suit against the media outlet and can prove in court that the report is unfair, biased, or untrue, then you may be able to be compensated for damage to your reputation.
Q: What about me? Can I get in trouble for saying something about someone that isn't true?
A: Yes. Individuals, not just the media, can be held liable for defamation if they either publish (libel) or say (slander) something about someone that isn't true and that person suffers harm as a result. If you defame a private individual, that person would have to be able to prove: 1) that you made a statement, reported as fact, to another person; 2) that the statement was false; 3) that the statement caused damage to that person; and 4) that you were negligent in making that statement. If you defame a public figure (such as a celebrity or member of government, for example), that person will have to prove: 1) that you made a statement to another person, reported as fact; 2) that the statement was false and caused damage; and 3) that you made the statement with actual malice-that is, with knowledge that the statement was false or with reckless disregard as to whether the statement was false or not.
Remember, however, that you cannot be held liable for voicing your opinion, only for making untrue factual assertions.
Q: Why are tabloid magazines allowed to print what they do about celebrities?
A: The law has been crafted to provide greater freedom for individuals to comment on and criticize those people in the public eye. Such people are classified as "public figures" and they are not given as much protection from defamation as are private citizens. Unless public figures are able to prove that a tabloid magazine acted with "actual malice”—knowingly printing false information, or acting recklessly as to whether it was false or not, public figures cannot recover damages for defamation. Keep in mind, however, that celebrities may sometimes have the right to sue, but just choose not to do so.
Q: Does this actual malice requirement mean I can criticize public officials or criticize the way our government is run?
A: Absolutely. Under the Ohio Constitution, you are free to voice your opinions about any of these matters. If a public official tries to sue you for making a false statement of fact, he or she will have to prove that you acted with "actual malice" in making the statement. You also cannot be sued for defamation for statements you make in court, statements you make to a local bar association concerning misconduct of an attorney, or statements you make to a local government during one of its meetings, subject to rules concerning knowledge of falsity or reckless disregard for the truth.
Q: What kind of "damages" would someone have to prove in order to successfully recover for defamation?
A: Damages can be anything from hurting someone's reputation in his or her trade or profession, to causing that person mental anguish and humiliation. Recovery for damages can take two basic forms: money damages, or an "injunction" (a court order). An injunction means that you could be forced to retract what you said about the person and/or you can be prevented from making any further untrue statements about the person. However, prior restraint of statements is rarely allowed and is subject to constitutional protection.
Q: When contacted by a company that's considering me for a job, my former employer said something about me that wasn't true. Can my former employer be held liable for defamation?
A: It depends. Under Ohio law, communications between employers concerning the conduct of a former employee are privileged, so long as they are made in good faith and concern a matter of common interest. However, a past employer who made a false statement to a prospective employer, knowing it was not true, could be held liable. In such a case, the past employer would not be acting in good faith.
This “Law You Can Use” consumer legal information column was provided by the Ohio State Bar Association. It was originally prepared by Maureen P. Haney, an attorney associated with the Cleveland office of Vorys, Sater, Seymour and Pease LLC. It was updated by Daya Patibandla, Susan Grogan Faller and Monica Dias, attorneys in the Cincinnati office of Frost Brown Todd LLC.