In many legal proceedings, a person or entity suing another might be required under the law to prove that the defendant — the party being sued — acted with “actual malice.” For example, in many jurisdictions, a person suing for fraud can be awarded punitive damages, but only if they can show that the other party committed the fraud with “actual malice” or with reckless or conscious disregard. Likewise, in most jurisdictions, to prove unlawful interference with a prospective business advantage, it must be proven that the defendant acted with intent or had “actual malice.

In yet another example, in defamation cases, when a public figure is the victim of libel or slander, if a lawsuit is filed, there must be proof that the slanderous/libelous statements were made with “actual malice.” The most famous definition of “actual malice” comes from the US Supreme Court case in New York Times Co. v. Sullivan, 376 U.S. 254 (1964) where “actual malice” was simply defined as statements made “with the knowledge that they are false.” Other courts have defined “actual malice” as:

• “A state of mind characterized by an intent to do a harmful act without a reasonable justification or excuse” or
• Statements being made “with knowledge that statements are false, or despite a high degree of awareness of their probable falsity”

However, even these definitions remain elusive, abstract and difficult to understand.

So, what is “actual malice” for people without a law degree? The definition varies slightly depending on the type of case. But, in defamation cases, “actual malice” is about the knowledge held about whether the statements were true or false. That is, in defamation cases, “actual malice” is NOT about whether the person making the statements liked or disliked the target of the statements. This point was made clear in the New York Times case. In that case, the target of the statements — Montgomery Public Safety commissioner, L. B. Sullivan — claimed that the newspaper had defamed him by implication and that proof of actual malice was shown by the paper’s ill will and spite. However, the Supreme Court limited the concept of “actual malice” to knowledge of whether the statements made are truthful.

Let’s look at an example. Suppose Rebecca the Voter goes online and publishes the following statement on her social media account: “I hate Senator Sally. She’s just the worst, most awful politician. And she took a bribe.”

Now assume that, at the time, many news media entities were reporting that a criminal investigation had been opened concerning allegations that the Senator had taken a bribe from Businessman Derrick. Furthermore, the Senator’s bank statements had been leaked online showing large unexplained deposits into the account from Derrick’s company. Several months later, it was determined that the bank statements were forgeries and that there was no basis for the claim that Derrick had bribed Senator Sally. The criminal investigation was closed.

Suppose that Senator Sally sues Rebecca for defamation. Since the Senator is a public figure, she will have to show that Rebecca had “actual malice” when she made her “took-a-bribe” false statement.

Under defamation law, the Senator will likely lose her case. Yes, Rebecca said she “hated” Senator Sally. In common use, most people consider that “malice” — certainly that is “ill will” and spite and disrespect. But, for defamation law, that is not malice. The “actual malice” element must be shown with respect to the truth or falsity of the statement that Senator Sally “took a bribe.”

In our example, to evaluate whether Rebecca had “actual malice,” an examination is needed of whether Rebecca knew that the “took-a-bribe” statement was false and/or whether she had a reason to know the statement was false. In practice, courts will actually turn this around and consider whether a person had a good basis for believing the truth of the statement. In our example, Rebecca did not have “actual malice” because she had several good reasons for believing the statement to be true:

• Senator Sally was under criminal investigation for taking a bribe
• News reports were widely disseminated about the bribery investigation
• Purported financial documents allegedly showing deposits from Derrick were publicly available

These three facts are likely sufficient for Rebecca to avoid liability for defamation. It cannot be proven that Rebecca knew the “took-a-bribe” statement was false or that she should have known the statement was false. Note that “actual malice” is evaluated at the time the statements were made. Thus, it does not matter that the Senator’s bank statements were eventually shown to be forgeries and that the investigation was eventually closed.

For more information, contact the trusted internet lawyers at Revision Legal at 231-714-0100.