Defamation in New York: What is Defamation? 

Defamation in New York is a false statement of fact that is published about a person to a third party which causes damages.  Statements can be published on the internet, in newspapers, in letters, or on posters or by way of conversation.  Defamation that is written is called libel, whereas defamation that is spoken is called slander. 

More specifically, to sue for defamation, a person must be able to prove:

1.     A false and defamatory statement of fact

2.     Regarding the plaintiff

3.     Which is published to a third party and which

4.     Results in injury to the plaintiff.

Defamation has long been recognized as arising from the making of a false statement which tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.  

It is not enough that a statement is offensive, it must be a false statement of fact that results in injury.  Name calling and petty insults do not amount to defamation.  Similarly, if a statement was true when written, it cannot be considered defamation.  For instance, if a person is charged with a crime and a newspaper reports that the person was charged with that crime, that would not be considered defamation even if the charges are later dropped or a person is found not guilty.  

Defamation in New York: When Can I Sue for Defamation?

 The Statute of Limitation for defamation in the State of New York is one year.  That means that a person who has been defamed has one year to bring a lawsuit against the person defaming them.  In most instances, this clock begins running the first time a person makes a defamatory statement or publication; this is known as the single publication rule.  There are a handful of exceptions to the single publication rule, however.  If the two publications are made to different audiences – for instance, the first one to an online audience and the second to print readers – that is an exception to the single publication rule.  Republishing an article from one website to another or editing and republishing the story is also an exception to the single publication rule. 

What Do Anti-SLAPP Laws Mean for New York Defamation Lawsuits?

Many states across the country, including New York, have passed laws that address Strategic Lawsuits Against Public Participation (SLAPP).  Traditionally, SLAPP lawsuits are baseless or frivolous defamation lawsuits brought by big companies against private individuals to intimidate them into remaining quiet.  It’s not necessary that a big company be involved, but that the lawsuit is filed in retaliation for the defendant criticizing or opposing the plaintiff publicly.  Opponents of such lawsuits argued that SLAPP suits stifle free speech and whistleblowing.

On November 10, 2020, the New York State Legislature amended the state’s Anti-SLAPP statute and created a new Civil Rights Law 76-a.  The amended statute now requires plaintiffs to show that a defamatory statement was “made with knowledge of its falsity or with reckless disregard of whether it was false” when such a statement was made “in a place open to the public or a public forum” and concerning “any subject other than a purely private matter.”  That means that most online statements now fall under the rule that the speaker must have made the statement knowing it was false or with reckless disregard for whether it was false. 

Under this new law, defendants can get court awarded attorneys fees if they can show that a plaintiff brought a lawsuit “involving public petition and participation” that was “commenced or continued without a substantial basis in fact and law.” 

It is imperative that plaintiffs in defamation lawsuits speak with their lawyers at length about the potential risks of filing a defamation lawsuit prior to moving forward.

New York Defamation Defenses

• Defamation Defenses: Truth

Just like they say in the movies, truth is an absolute defense to defamation claims.  So is substantial truth.  It is necessary to any defamation claim that a plaintiff assert and establish that the statement made about them is false.  If a defendant includes the truth or substantial truth of his statement as an affirmative defense, he must also plead and establish the truth of his statement.

If you are sued for defamation in New York and the statement you made is true, it is important to raise the affirmative defense of truth in your answer to the lawsuit. 

• Defamation Defenses: Opinion

Since defamation must be false to be actionable and only facts are capable of being proven true or false, pure opinion cannot be the subject of a defamation action.  A statement which is accompanied by a set of facts upon which the statement is based remains a nonactionable opinion.  An opinion that suggests it is based on facts not disclosed to the reader is considered a “mixed opinion” and can be the subject of a defamation claim. 

If you are sued for defamation in New York and the statement you made is pure opinion, it is important to raise the affirmative defense of opinion in your answer to the lawsuit.

• Defamation Defenses: Statute of Limitations

The Statute of Limitations for defamation in the State of New York is one year.  That means that a person who has been defamed has one year to bring a lawsuit against the person defaming them. 

If you are sued for defamation in New York and you made the statement more than one year ago, it is important to raise the statute of limitations as an affirmative defense.

• Defamation Defenses: Privilege

There are two types of privilege in defamation lawsuits, absolute privilege and qualified privilege.  Statements that are absolutely privileged cannot be the subject of a defamation lawsuit.  Statements made in judicial proceedings, legislative proceedings, or by public officials when carrying out their responsibilities are protected by absolute privilege. 

Qualified privilege is a bit more complicated.  Also known as a common interest privilege, the privilege applies where the speaker has a moral, legal, or ethical duty to make a statement to a specific audience who has a common interest in learning the information contained in the statement.  Statements that are knowingly false when communicated – statements made with actual malice – cannot be protected by qualified privilege. 

Defamation in New York: Am I a Public Figure?

Prior to the amendments to New York’s Anti-SLAPP laws, it used to be very important whether the person being defamed was a private person or public figure.  This was because private individuals needed only to establish that the defendant was negligent in making the defamatory statement – that a reasonable person would not have published the statement.  Conversely, a public person needed to show that the defendant published the statement knowing it was false or with reckless disregard for its falsity.  As the change in New York’s defamation laws raise the burden for statements made before the public about matters that are not purely private, the distinction between public figures and private individuals has become less legally relevant in lawsuits.

Suing Facebook or Google for Defamation

 Section 230 of the Communications Decency Act of 1996 gives websites broad legal immunity from statements or images posted by a user.  The law states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This protection was created to encourage the creation of websites on what was then a very young internet.   While the law may have been conceived with good intentions, it has had the negative effect of shielding companies that allow bad content to get posted and remain on their websites.

This means that, for the most part, you cannot sue interactive computer services like Google, Facebook, or Twitter for allowing nonconsensual pornography or defamation to get posted and remain on their website.