Torts: Defamation and Privacy

Defamation and privacy sit at the heart of tort law’s protection of reputational and dignitary interests. They address different kinds of harm, but they often arise from the same real-world conduct: a damaging publication, a careless disclosure, an intrusive investigation, or a story that crosses the line from newsworthy to needlessly personal. Understanding these torts requires attention to what the plaintiff must prove, what the defendant can argue in response, and how constitutional values shape the rules, especially when speech involves public figures or matters of public concern.

Defamation: protecting reputation from false statements

Defamation is a tort that remedies harm caused by a false statement of fact that injures a person’s reputation. It is traditionally divided into:

• Libel: defamation in written or otherwise recorded form (print, online posts, broadcast transcripts).
• Slander: defamation spoken and generally transient (a verbal accusation in a meeting, a rumor repeated aloud).

The distinction matters historically because libel was treated as more serious and more likely to cause lasting damage. In modern practice, the line can blur, but the core elements remain the same.

Elements of a defamation claim

While details vary by jurisdiction, a typical defamation claim requires:

1. A statement of fact about the plaintiff

Defamation generally targets statements that can be proved true or false. Pure opinion, rhetorical hyperbole, or loose figurative language is less likely to be actionable. Calling someone “incompetent” may be opinion; accusing them of “embezzling client funds” asserts a factual claim.

1. Publication to a third party

“Publication” means the statement was communicated to someone other than the plaintiff. A private email to one colleague can qualify. Posting to social media is publication to the world.

1. Falsity (often required, especially in matters of public concern)

Truth defeats defamation. Many systems require the plaintiff to show falsity in cases involving public concern.

1. Fault

Fault ranges from negligence to more demanding standards for certain plaintiffs. Public figures face higher hurdles, discussed below.

1. Damages

The plaintiff must show harm, though some categories of statements have historically permitted presumed damages.

Defamation per se and practical harm

Courts have long treated some allegations as so inherently damaging that they can support liability without detailed proof of economic loss. Traditional “per se” categories commonly include false statements that someone committed a serious crime, has a loathsome disease, is unfit for their profession, or engaged in serious sexual misconduct. Even where the doctrine is narrowed, the underlying idea remains practical: reputational injury can be real even when it is hard to quantify precisely.

Public figures and heightened constitutional protections

Defamation law is not only about private disputes; it sits at the edge of free speech. When a plaintiff is a public figure or the statement involves public debate, legal rules often demand stronger protection for speech to avoid chilling criticism.

Who is a public figure?

Public figures generally include:

• General-purpose public figures: people with pervasive fame or influence.
• Limited-purpose public figures: people who thrust themselves to the forefront of a particular public controversy to influence its resolution.

Public officials are typically treated similarly, reflecting the public’s interest in robust scrutiny of those who wield government power.

Actual malice standard

For public officials and many public figures, the plaintiff must show actual malice, meaning the defendant made the statement knowing it was false or with reckless disregard for whether it was true. Reckless disregard is not mere carelessness; it is a high bar that focuses on the defendant’s subjective awareness of probable falsity.

This standard is central in media cases but applies beyond traditional journalism. A blogger, influencer, or advocacy group can face the same standard when speaking about public figures in contexts treated as public concern.

Why the law draws the line here

The law tolerates more risk of error in speech about public affairs because debate is often urgent, messy, and based on incomplete information. The remedy for bad speech is not always a lawsuit; it can be correction, counter-speech, or public scrutiny. At the same time, actual malice is not a free pass. Deliberate falsehoods and calculated indifference to truth can still produce liability.

Defenses to defamation

Defamation claims often turn on defenses. The most important include:

• Truth: If the statement is substantially true, the claim fails. “Substantially” recognizes that minor inaccuracies do not make an otherwise true accusation defamatory.
• Opinion and fair comment: Statements that cannot reasonably be interpreted as asserting provable facts are less likely to be actionable. Context matters, including tone, forum, and whether the speaker disclosed the underlying facts.
• Privilege:
• Absolute privilege commonly covers statements in judicial proceedings and some legislative contexts, even if defamatory, to promote candor.
• Qualified privilege may cover reports to employers, references, or statements made to protect legitimate interests, usually defeated by abuse such as malice or excessive publication.
• Consent: A person who agrees to publication may lose the ability to complain, depending on scope and context.
• Retraction and mitigation: Retractions may reduce damages in some systems and are often relevant to fault and remedy even if they are not a complete defense.

Privacy torts: protecting dignity, autonomy, and seclusion

Privacy torts address different harms than defamation. A privacy claim can succeed even if a statement is true, because the wrong is not reputational falsity but an invasion of personal life. The classic privacy torts include intrusion and disclosure (often called public disclosure of private facts), among others.

Intrusion upon seclusion

Intrusion targets wrongful prying, not publication. It focuses on the method of obtaining information rather than what is later said about it.

Key ideas include:

• Intentional intrusion into a private place, conversation, or affairs
• Reasonable expectation of privacy
• Highly offensive intrusion judged by ordinary sensibilities

Examples often involve covert recording in private settings, unauthorized access to private accounts, or persistent surveillance that goes beyond normal observation. Simply observing someone in public is usually not intrusion; placing a hidden camera in a private space is.

Public disclosure of private facts

Disclosure addresses the widespread revelation of truthful but private information that a reasonable person would find highly offensive, when the information is not of legitimate public concern.

Important features:

• The information must be private and not already broadly known.
• The disclosure must be public in the sense of widespread dissemination, not a quiet comment to one person.
• Courts often weigh the newsworthiness or public interest in the information.

This tort frequently arises in cases involving medical details, sexual history, or intimate family matters. The hard cases involve individuals who have some public visibility but still retain private zones. A public figure may have a reduced expectation of privacy regarding matters tied to their public role, but that does not eliminate privacy protections across the board.

Where defamation and privacy overlap, and where they diverge

Because both areas protect dignitary interests, disputes can present overlapping theories. A news story could be challenged as defamatory if it falsely implies wrongdoing, and also challenged as a privacy violation if it reveals sensitive personal information unnecessarily.

The key differences are:

• Defamation is primarily about false statements that damage reputation.
• Disclosure privacy is about true but private facts revealed without sufficient justification.
• Intrusion is about how information is obtained, even without publication.

A practical way to analyze a case is to ask three questions:

1. Is the claim based on falsity and reputational harm? That points to defamation.
2. Is the claim based on truthful but intimate information being broadcast? That points to disclosure.
3. Is the claim based on invasive conduct, surveillance, or unauthorized access? That points to intrusion.

Practical takeaways for speakers, publishers, and individuals

For anyone communicating publicly, the safest habits are not legal tricks but editorial discipline:

• Separate provable facts from interpretation, and make that separation clear to readers.
• Verify serious allegations, especially those that imply criminality or professional misconduct.
• Be cautious with statements about public figures, but do not assume the label eliminates all risk. Actual malice focuses on your state of mind and your process.
• Treat private information as a separate risk category. Even a true fact can create liability if it is intensely personal and not legitimately newsworthy.
• Recognize that how information is gathered matters. Intrusive methods can create liability even before a story is published.

Defamation and privacy torts are not designed to sanitize public debate or prevent uncomfortable truths from coming out. They exist to draw boundaries: between sharp criticism and false factual attack, between public interest and voyeurism, and between legitimate investigation and wrongful intrusion. In practice, the disputes are fact-sensitive, and outcomes often turn on context, intent, and the reasonableness of the speaker’s conduct.