Article · Tort

Defamation in the Age of the Screenshot: Falsity, Fault, and the Republication Problem

Type
Article
Jurisdiction
National
Date
2024-03-14
Topic
Tort

Defamation is the tort everyone thinks they understand and almost nobody does. This article walks the whole structure — the six elements a plaintiff must actually prove, why "of and concerning" and publication do more work than people expect, and how the constitutional overlay built from New York Times Co. v. Sullivan through Gertz and Hepps reassigns the burden of proof depending on who the plaintiff is and what the statement is about. It explains the three fault standards, the difference between falsity and provable falsity after Milkovich, why calling something "just my opinion" changes nothing, and how defamation by implication lets literally accurate reporting still be actionable. It then takes up the problems the internet created: the single publication rule and what counts as republication, why Section 230 is not a defamation defense but an immunity for a different party, the anti-SLAPP patchwork and its unresolved federal-court split, and what happens when a language model generates a false statement about a real person. The piece closes with damages, insurance, and the practical arithmetic that decides whether a defamation case is worth bringing.

Defamation in the Age of the Screenshot: Falsity, Fault, and the Republication Problem

Tort > Defamation and Media | Published 14 March 2024 - Updated 2 February 2026 | UpLaw - uplaw.us

In brief. Defamation is a reputational tort with a constitutional lid on it. State law supplies the elements — a false statement of fact, about the plaintiff, published to a third party, causing reputational harm. The First Amendment supplies the limits — who bears the burden of proving truth, how culpable the speaker must have been, and what damages may be presumed. Nearly every defamation case that gets decided rather than settled turns on one of four questions: Is it a statement of fact? Is it false? Who is this plaintiff? and How badly did the speaker behave? Everything else is detail.

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