Virtually every newspaper publishes articles to make money nothing about that indicates malicious intent. Having a general profit motive, without more, is not sufficient to show actual malice. Determine whether the defendant had a profit motive to lie about you or your business. What you’re trying to prove is the defendant’s state of mind at the time of publication, but there’s no rule limiting you to evidence pre-dating the publication to prove this. The court found this evidence relevant to the question of actual malice. In a New York case a few years ago, a book author met with her sources after getting sued and offered to pay them for affidavits supporting the allegations in her book. If a defendant posts a false and defamatory comment on Facebook and then later brags to a friend in a text message about spreading lies about the plaintiff, that text message might be probative of actual malice even though the text didn’t come into existence until after the defamatory statement was written. Many courts, however, have allowed discovery of evidence that arose after the fact, such as the defendant’s own statements. Sure, it seems to make sense that when trying to prove the defendant’s state of mind at the time of publication, you’d want to focus on evidence that existed prior to that time. Don’t limit yourself to documents pre-dating the publication date. If you’re trying to collect evidence relevant to actual malice, here are some considerations as you draft your discovery requests: 1. In determining proportionality, courts will look at factors such as the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. The general rule is that parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case. To obtain such evidence in advance of trial, parties may resort to the discovery process, using tools such as interrogatories, requests for production of documents, and third-party document subpoenas.Ĭourts tend to allow fairly broad discovery. They can do this by usingĪll the relevant circumstances surrounding the transaction…provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff’s rights, and, in an action against a newspaper, custom and usage with respect to the treatment of news items of the nature of the one under consideration.
Therefore, most of the time, plaintiffs must resort to indirect and circumstantial evidence to prove their claims. So how do you prove actual malice? As you might imagine, it’s not very often that the defendant openly admits to intentionally lying. Recklessness amounting to actual malice may be found, for example, where a publisher fabricates an account, makes inherently improbable allegations, relies on a source where there is an obvious reason to doubt its veracity, fails to pursue the most obvious available sources for corroboration, or deliberately ignores evidence that calls into question his published statements. When a defendant publishes a false and defamatory statement with actual malice, it means the defendant knew the statement was false or, at a minimum, acted with reckless disregard as to truth or falsity. As discussed earlier on this blog, “ actual malice” in this context means something different than spite or ill will. Even private plaintiffs often seek to prove actual malice, such as when trying to show that a defendant lost or abused a qualified privilege. Public figures, public officials, and limited-purpose public figures all must prove that a defamatory publication was made about them with actual malice as part of their case in chief in any defamation action brought on the basis of that publication. Actual malice is an important concept in Virginia defamation law.
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