Special Harm

Elements of a Claim For Defamation

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The requirement that a plaintiff in a defamation case prove “actual harm” comes from the pivotal case of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). There, the United States Supreme Court delineated certain significant limitations the First Amendment imposes on defamation actions by private individuals. Gertz continued the constitutional narrowing of state defamation law begun in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), which laid down the rule that public officials can recover for defamations concerning their official capacities only where the publisher acts with knowledge or reckless disregard of the falsity of the publication.

In Gertz the Supreme Court held that, consistently with the free speech and press guarantees of the First Amendment as applied to the states through the Fourteenth Amendment, state defamation law 1) may not impose liability without fault on the publisher of defamatory matter; 2) may permit recovery of “compensation for actual injury,” but not presumed or punitive damages unless New York Times “actual malice” is present, that is, unless the publisher has acted with knowledge or reckless disregard of the falsity of the publication.

The Gertz Court declined to define “actual injury,” “actual harm,” or “actual loss,” the three terms it used interchangeably to designate the new constitutional limits on recovery in a defamation action where the plaintiff fails to prove “actual malice.” The Court did say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. 418 U.S. at 350, 94 S.Ct. at 3012, 41 L.Ed.2d at 811. The above comes directly from the opinion in Agriss v. Roadway Express, Inc., 334 Pa. Super. 295 (1984).

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