The Defamation and Media Law Toolkit

Tort > Defamation and Media | Published 19 June 2025 - Updated 7 July 2026 | UpLaw - uplaw.us

Every defamation matter is four questions in disguise. Is it a statement of fact? Is it false? Who is this plaintiff? How badly did the speaker behave? Answer those four in order and you can place any media dispute — a one-star review, an investigative feature, a leaked memo, a chatbot output — without knowing anything else about it. Most cases die on question one or two. The ones that survive are decided on question four.

Keywords: defamation, libel, actual malice, public figure, opinion, fair report, litigation privilege, § 230, anti-SLAPP, anonymous speech, false light, trade libel, shield law, prior restraint, retraction, media insurance

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How to read this toolkit

This is a resource map, not a treatise. It walks twelve pillars of defamation and media practice. Under each you get the governing doctrine in plain terms, the anchor authority, the trap that catches people, and the UpLaw documents that develop it.

Four ground rules before you start.

One: defamation is state law with a federal ceiling. The elements, the privileges, the limitations period, the retraction statute, and the availability of false light are all state questions. The fault standard, the burden of proving falsity, and the availability of presumed and punitive damages are constrained by the First Amendment. You need both layers, and you need the right state's layer — which the choice-of-law rule may not place in the forum.

Two: statements, not articles. These cases are litigated assertion by assertion. Every analysis in this toolkit is run against a chart with one row per assertion. Build the chart first.

Three: the economics usually decide. Anti-SLAPP fee-shifting, the amplification effect of filing, the intrusiveness of reputation discovery, and the collectability of the defendant will determine the outcome of more defamation matters than any doctrine here. Do that math in week one.

Four: three clocks are running. The limitations period, the retraction-demand window, and the practical window for a correction that still repairs the harm. The retraction window is usually the shortest and is the one most often missed.

Start here for the full doctrinal treatment: Defamation Law: A Comprehensive Guide to Libel, Slander, Privileges, and Damages. For the narrative introduction: Defamation in the Age of the Screenshot: Falsity, Fault, and the Republication Problem. For the operational sequence: Evaluating and Responding to a Defamation Claim: A Practical Checklist.

Our running matter. Coastwatch Review (fictional) published "Inside Ardent's Data Problem," reporting that Ardent Biologics, Inc. (fictional) falsified regulatory submissions and that CEO Vera Nakashima (fictional) directed it. The source was Ilya Petrov (fictional), a terminated quality manager. We drag Coastwatch and Ardent through every pillar.

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Pillar 1 — The claim

Doctrine. A false and defamatory statement of fact concerning the plaintiff, published without privilege to a third party, with the requisite fault, causing damage or damage presumed. Restatement (Second) of Torts §§ 558–559 (1977). Whether the statement is capable of defamatory meaning is a question of law; whether it was so understood is for the jury.

Anchor. Restatement §§ 558–559, 564A (group defamation), 570–574 (per se categories), 578 (republication).

Trap. "Of and concerning." Criticism of an institution is not automatically libel of the individual who runs it. New York Times Co. v. Sullivan, 376 U.S. 254, 288–92 (1964). And the corollary: a company and its executive have separate claims with separate status analyses and separate damages.

Go deeper: Defamation Law: A Comprehensive Guide · Tort Law: A Comprehensive Guide to Negligence, Intentional Torts, and Strict Liability

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Pillar 2 — The constitutional overlay

Doctrine. Two variables control everything: who the plaintiff is and whether the speech is on a matter of public concern. Public officials and public figures must prove actual malice by clear and convincing evidence. Private figures need only the state's chosen standard (usually negligence) but, where the speech is of public concern, may not recover presumed or punitive damages without actual malice, and bear the burden of proving falsity.

Anchors. Sullivan, 376 U.S. 254 (1964) (actual malice); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) (taxonomy and damages limits); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (private-concern carve-out); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) (burden of falsity); St. Amant v. Thompson, 390 U.S. 727 (1968) (subjective standard); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) (purposeful avoidance); Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (independent appellate review).

Trap. Limited-purpose public figure status is defined by subject matter chosen by the defendant. A restaurant owner is a private figure — until she spends a year campaigning about tipped wages and the article is about tips. Run the Waldbaum factors before you draft the complaint, not after. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980).

Trap, second order. "Actual malice" is not malice. A speaker who hates the plaintiff and publishes an honest mistake wins. A speaker with no feelings about the plaintiff who ignores a documented denial loses.

Go deeper: Defamation Law: A Comprehensive Guide · Defamation in the Age of the Screenshot

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Pillar 3 — Fact, opinion, and implication

Doctrine. There is no separate constitutional privilege for opinion. The question is whether the statement is "sufficiently factual to be susceptible of being proved true or false." Milkovich v. Lorain Journal Co., 497 U.S. 1, 21 (1990). Protected: rhetorical hyperbole, opinion resting on fully disclosed facts, and unverifiable evaluations. Unprotected: opinion implying undisclosed defamatory facts.

Anchors. Milkovich, 497 U.S. 1 (1990); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970); Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc) (four-factor context test); Restatement § 566 cmt. c.

Trap. Hedges do nothing. "Allegedly," "sources say," and "questions have been raised" neither convert fact into opinion nor defeat republication liability. Restatement § 578. Attribution is not a defense; the fair report privilege is.

Trap, second order. Defamation by implication survives when every individual sentence is accurate. Courts require a heightened showing — the language must affirmatively suggest the author intended the inference. Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993). Coastwatch's structural choice to bury Ardent's documented denial is the implication case.

Go deeper: Defamation Law: A Comprehensive Guide · Evaluating and Responding to a Defamation Claim: A Practical Checklist

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Pillar 4 — Privileges

Doctrine. Absolute: judicial proceedings (Restatement §§ 585–589), legislative proceedings (U.S. Const. art. I, § 6), high executive officials (Barr v. Matteo, 360 U.S. 564 (1959)), consent. Qualified: common interest, self-interest, third-party interest, reports to law enforcement, employment references — all defeasible by abuse. Fair report: accurate reporting of official proceedings and actions. Restatement § 611.

Anchor. Restatement § 611 for the fair report privilege; Hutchinson v. Proxmire, 443 U.S. 111 (1979), for the limit on the legislative privilege (the floor speech is privileged; the press release is not).

Trap. The fair report privilege covers official proceedings. It does not cover a consumer review, a private complaint, an anonymous tip, or a leaked internal document. And "fair" means balanced: a report that recites the indictment and omits the acquittal is not privileged.

Trap, second order. The litigation privilege is broader than most lawyers assume — it typically covers pleadings, discovery, settlement communications, and pre-suit demand letters. That is why aggressive demand letters are generally not themselves libel, and why leaked pleadings are a durable reputational weapon.

Go deeper: Defamation Law: A Comprehensive Guide · Drafting an Effective Demand Letter: The Basics · Conducting a Workplace Investigation: A Practical Checklist

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Pillar 5 — Section 230 and platform liability

Doctrine. No provider or user of an interactive computer service may be treated as the publisher or speaker of content provided by another. 47 U.S.C. § 230(c)(1). This is an immunity for a defendant, not a determination that the statement was lawful. Notice-based liability is squarely foreclosed.

Anchors. Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997); Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc) (material contribution); Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (promissory claims); Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019) (algorithmic arrangement); § 230(e)(2) (IP carve-out).

Trap. Clients want to sue the platform. Explain at intake that they cannot, then redirect to what works: the speaker, the republishers, the platform's own voluntary reporting process, and the publisher's correction policy. The platform's process is frequently faster and cheaper than any legal remedy.

Trap, second order. Model-generated output is arguably the developer's own content, which would place it outside § 230 entirely. Unsettled. The first American merits ruling, Walters v. OpenAI, L.L.C., No. 23-A-04860-2 (Ga. Super. Ct. May 19, 2025), went for the defendant on other grounds.

Go deeper: Section 230, the IP Carve-Out, and Platform Liability for User-Generated Infringement · Website and Internet Law: A Comprehensive Guide · Key Legal Issues in Artificial Intelligence: A Comprehensive Guide for Business and Counsel

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Pillar 6 — Anonymous speech and the single publication rule

Doctrine. Anonymous speech is protected, McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), so unmasking requires a heightened showing — notice to the speaker, identification of the exact statements, a prima facie evidentiary showing, and a balancing. Separately, the single publication rule starts the limitations clock at first posting; continued availability does not restart it, but republication does.

Anchors. Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001); Doe v. Cahill, 884 A.2d 451 (Del. 2005); Firth v. State, 775 N.E.2d 463 (N.Y. 2002); In re Philadelphia Newspapers, LLC, 690 F.3d 161 (3d Cir. 2012) (hyperlinks are references, not republications); Restatement § 577A.

Trap. The clock started when the piece posted, not when the client found it. Clients routinely arrive at month eleven of a twelve-month period. But look for later republications — reposts that reproduce the content, syndication, and moves to a new URL each start their own clock, and they are often the only live claims left.

Go deeper: Getting Website Evidence Admitted: A Practical Authentication Checklist · Authenticating Website Screenshots and Web Evidence in Federal Court: A Practitioner's Guide

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Pillar 7 — The neighboring torts

Doctrine. Plaintiffs plead around defamation constantly. False light (Restatement § 652E) reaches offensive-but-not-reputation-damaging portrayals and is rejected in roughly a third of states. Public disclosure of private facts (§ 652D) does not require falsity but is severely constrained constitutionally. Intrusion upon seclusion (§ 652B) targets newsgathering rather than publication. IIED cannot be used to evade the defamation rules. Trade libel (§ 623A) covers product disparagement but requires proof of special damages. Lanham Act § 43(a)(1)(B) is often the better claim against a commercial competitor.

Anchors. Time, Inc. v. Hill, 385 U.S. 374 (1967); Florida Star v. B.J.F., 491 U.S. 524 (1989); Bartnicki v. Vopper, 532 U.S. 514 (2001); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988); Snyder v. Phelps, 562 U.S. 443 (2011); 15 U.S.C. § 1125(a)(1)(B).

Trap. The alternative torts frequently carry different limitations periods, which is why they appear in complaints filed after the defamation clock ran. Defendants should check whether the alternative claim is really a defamation claim in costume — many courts will say so and apply the defamation period.

Go deeper: The Right of Publicity: Controlling Commercial Use of Name, Image, and Likeness · False Advertising Under Lanham Act Section 43(a): Competitor Claims in Tech Marketing · Advertising Law: A Comprehensive Guide to the FTC Act and Lanham Act

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Pillar 8 — Newsgathering law

Doctrine. How the information was obtained is a separate legal question from whether publishing it was actionable. Recording statutes (one-party versus all-party consent), the federal Wiretap Act, 18 U.S.C. §§ 2510–2523, trespass, intrusion, and the Computer Fraud and Abuse Act all police acquisition. Publication of lawfully obtained truthful information about a matter of public significance is heavily protected even when a source obtained it unlawfully. Bartnicki v. Vopper, 532 U.S. 514 (2001).

Anchor. Bartnicki, 532 U.S. 514 (2001), on the publication side; the applicable state recording statute on the acquisition side.

Trap. All-party consent states. A reporter in a one-party state recording a source in an all-party state may violate the latter's law, and the analysis is genuinely unsettled in some jurisdictions. Establish the rule before the call, not after.

Trap, second order. The reporter's privilege is qualified, not absolute. Branzburg v. Hayes, 408 U.S. 665 (1972). Most circuits and nearly all states recognize some version by common law or shield statute, but a defense that depends on a source who cannot be identified may be unable to establish reasonable investigation. Assess this before promising confidentiality.

Go deeper: Cameras, Consent, and the Law of Recording People · Web Scraping and the Law After hiQ v. LinkedIn: Where the CFAA, Contract, and Copyright Collide · The Subpoena Survival Guide: Rule 45 from All Three Sides

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Pillar 9 — Anti-SLAPP and procedure

Doctrine. More than thirty states allow early dismissal of claims arising from protected speech, with a discovery stay, burden shifting, immediate appealability, and mandatory fees to a prevailing defendant. The Uniform Public Expression Protection Act (2020) is the modern model.

Anchor. Cal. Civ. Proc. Code § 425.16 as the most-litigated example; UPEPA as the model act.

Trap. The federal-court split. The trend is against applying state anti-SLAPP statutes in federal court: Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015); Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019); La Liberte v. Reid, 966 F.3d 79 (2d Cir. 2020); Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659 (10th Cir. 2018). The Ninth Circuit still applies a modified version. Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, 890 F.3d 828 (9th Cir. 2018).

Consequence. Forum selection is substantive. A plaintiff with diversity may file federally to escape the motion; a defendant weighing removal is weighing away a fee-shifting statute. Quantify the fee exposure in writing before filing.

Go deeper: Personal Jurisdiction, Venue, and Forum Selection: A Comprehensive Guide · Challenging Jurisdiction and Venue: A Pre-Answer Motion Checklist · Moving for Summary Judgment Under Rule 56: A Practical Checklist

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Pillar 10 — Remedies

Doctrine. Special, general, presumed, and punitive damages, with the presumed and punitive categories constitutionally restricted where the speech is of public concern. Injunctions face the prior restraint bar, but a narrow post-adjudication injunction against repeating specifically adjudicated falsehoods is permitted in some jurisdictions. Retraction statutes cap damages in roughly two-thirds of states.

Anchors. Gertz, 418 U.S. at 349–50; Near v. Minnesota, 283 U.S. 697 (1931); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971); Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339 (Cal. 2007); Tory v. Cochran, 544 U.S. 734 (2005); Sindi v. El-Moslimany, 896 F.3d 1 (1st Cir. 2018) (overbreadth).

Trap. Overbroad injunctions get vacated. An order barring "any disparaging statements about plaintiff" will not stand. Draft to the specific adjudicated statements or expect reversal.

Trap, second order. The retraction demand deadline. Missing it can eliminate every damages category worth having. Check it in the first hour.

Go deeper: Temporary Restraining Orders and Preliminary Injunctions: A Comprehensive Guide · The Litigation Damages Toolkit: Valuing and Proving Money Awards · Winning Is Not Collecting: The Long Game of Judgment Enforcement

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Pillar 11 — Insurance

Doctrine. Standard CGL forms cover "personal and advertising injury," defined to include oral or written publication of material that slanders or libels a person or organization. Media liability policies cover the publishing risk expressly, usually bundling libel, privacy, and infringement.

Anchor. The policy's "personal and advertising injury" definition and its exclusions.

Trap. Three exclusions do the damage: material published with knowledge of falsity, material first published before the policy period, and publication by an insured in the business of publishing. The third one surprises small publishers who bought only a CGL policy. Tender anyway — the duty to defend is broader than the duty to indemnify.

Go deeper: Insurance Coverage Law: A Comprehensive Guide for Policyholders · Tendering a Claim and Preserving Coverage: A Policyholder's Checklist · The Business Insurance and Coverage Toolkit

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Pillar 12 — Prevention and reputation management

Doctrine. Not doctrine — practice. The highest-leverage media law work happens before publication and outside litigation.

On the publishing side: pre-publication review of pieces alleging crime, fraud, professional incompetence, or sexual misconduct; single-source stories; and stories sourced to disgruntled former employees. Documented verification. A right of reply that puts specific allegations to the subject with real time to answer. Headline and caption discipline, because both are independent publications in practical effect. A written correction policy that is actually followed — which is simultaneously good practice and evidence against reckless disregard.

On the subject side: platform reporting channels, search de-indexing requests where the content violates a search engine's policy, correction requests to reputable outlets (usually honored, and far more restorative than a verdict two years later), and the decision to do nothing where filing would multiply the audience.

Trap. Silent post-demand edits. They may constitute republication, they destroy the best evidence of what was published, and they look like consciousness of falsity. Correct openly and date it.

Go deeper: Website and Internet Law: A Comprehensive Guide · Social Media Law: A Field Guide to the Legal Stack · Launching a Website: A Legal Compliance Checklist

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The authority shelf

Constitutional framework

• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967)
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
• Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)
• Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986)

Fault

• St. Amant v. Thompson, 390 U.S. 727 (1968)
• Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989)
• Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984)
• Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)
• Herbert v. Lando, 441 U.S. 153 (1979)

Status

• Rosenblatt v. Baer, 383 U.S. 75 (1966)
• Time, Inc. v. Firestone, 424 U.S. 448 (1976)
• Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979)
• Hutchinson v. Proxmire, 443 U.S. 111 (1979)
• Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287 (D.C. Cir. 1980)
• Obsidian Finance Group, LLC v. Cox, 740 F.3d 1284 (9th Cir. 2014)

Fact and opinion

• Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
• Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 (1970)
• Letter Carriers v. Austin, 418 U.S. 264 (1974)
• Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc)
• Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993)
• Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991)

Internet

• 47 U.S.C. § 230
• Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)
• Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc)
• Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009)
• Firth v. State, 775 N.E.2d 463 (N.Y. 2002)
• Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001)
• Doe v. Cahill, 884 A.2d 451 (Del. 2005)

Remedies and procedure

• Near v. Minnesota, 283 U.S. 697 (1931)
• Balboa Island Village Inn, Inc. v. Lemen, 156 P.3d 339 (Cal. 2007)
• BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996)
• State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)
• SPEECH Act, 28 U.S.C. §§ 4101–4105

Jurisdiction and choice of law

• Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984)
• Calder v. Jones, 465 U.S. 783 (1984)
• Walden v. Fiore, 571 U.S. 277 (2014)
• Restatement (Second) of Conflict of Laws § 150

Secondary sources

• Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems (5th ed. 2017 & Supp.) — the practitioner standard
• Rodney A. Smolla, Law of Defamation (2d ed.)
• Restatement (Second) of Torts §§ 558–623A (1977)
• Uniform Public Expression Protection Act (2020)
• Uniform Correction or Clarification of Defamation Act (1993)
• David A. Anderson, Is Libel Law Worth Reforming?, 140 U. Pa. L. Rev. 487 (1991)
• Note the reform debate: Berisha v. Lawson, 141 S. Ct. 2424 (2021) (Thomas, J., and Gorsuch, J., dissenting from denial of certiorari); Tah v. Global Witness Publishing, Inc., 991 F.3d 231, 251–56 (D.C. Cir. 2021) (Silberman, J., dissenting)

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Appendix A — Preservation

What to capture, and how, in the first forty-eight hours:

1. The publication, via a capture service producing a hash and affidavit — not a phone screenshot.
2. Every republication: reposts, quoted excerpts, syndications, aggregator versions, and the outlet's own promotional social posts (often the most damaging rows in the chart).
3. Engagement data: views, shares, comment threads. This is damages evidence and it disappears.
4. Archived versions from web archives, to establish edit history.
5. The subject's own records bearing on truth — including the unhelpful ones.
6. Publisher-side: the entire reporting file. Drafts, notes, recordings, source communications, editorial messages, and the fact-checking record. Under Herbert v. Lando, this file is discoverable and it is the defense.
7. A litigation hold before any offboarding, device refresh, or retention policy runs.

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Appendix B — First-week triage

Usable from either side. Run it in this order.

Day 1. Compute the limitations period in each plausible forum. Compute the retraction-demand deadline. Determine the governing state's law under the choice-of-law rule. Preserve.

Day 2. Build the statement chart. One row per assertion, with speaker, date, medium, audience, and imputation. Add headlines, captions, and promotional posts as separate rows.

Day 3. Run each row through fact-versus-opinion and substantial truth. Most rows die here. Ask the client the hard version of the truth question and take documents, not assurances.

Day 4. Classify the plaintiff and the subject matter. Determine the fault standard and the damages architecture that follows from it.

Day 5. Inventory the fault evidence that actually exists. Inventory the privileges. Identify the right defendants and whether any are anonymous or immune.

Day 6. Do the economics: provable damages, collectability, anti-SLAPP fee exposure, discovery exposure, amplification risk, cost to summary judgment.

Day 7. Decide. Retraction demand, correction request, platform report, demand letter, complaint, or nothing — in writing, with the reasons.

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Related Documents

Guides

• Defamation Law: A Comprehensive Guide to Libel, Slander, Privileges, and Damages
• Tort Law: A Comprehensive Guide to Negligence, Intentional Torts, and Strict Liability
• Website and Internet Law: A Comprehensive Guide
• Social Media Law: A Field Guide to the Legal Stack
• Insurance Coverage Law: A Comprehensive Guide for Policyholders

Articles

• Defamation in the Age of the Screenshot: Falsity, Fault, and the Republication Problem
• Cameras, Consent, and the Law of Recording People
• Section 230, the IP Carve-Out, and Platform Liability for User-Generated Infringement
• The Right of Publicity: Controlling Commercial Use of Name, Image, and Likeness

Checklists

• Evaluating and Responding to a Defamation Claim: A Practical Checklist
• Getting Website Evidence Admitted: A Practical Authentication Checklist
• Writing an Effective Demand Letter: A Practical Checklist
• Tendering a Claim and Preserving Coverage: A Policyholder's Checklist

Toolkits

• The Website and Internet Law Toolkit
• The Tort and Products Liability Toolkit
• The Advertising and Marketing Law Toolkit
• The Litigation Damages Toolkit: Valuing and Proving Money Awards