Defamation—Public Official vs. Private Person

The distinction between the rights of a private person and the privacy rights of a public person is significant when Is there a difference between a public official and private defamation?considering a defamation claim. People who remove themselves from the private arena by becoming a public official or public figure do not give up all rights to privacy. However, there are specific restrictions applied to defamation claims with regard to someone who holds public office or chooses to be in the public eye.


The Public Arena  

            According to many courts, a public official is a government employee who has, or appears to the public to have, a significant role in the business of government and public affairs. Such people are considered to be held in a position that would draw or even demand public scrutiny. They also are considered to have significant ability to defend themselves regarding such public scrutiny and therefore cannot claim defamation unless the statement is not only proven to be false, but the defamer is proven to have shown reckless disregard for that falsity. New York Times Co. v. Sullivan, 376 U.S. 254.


            This rule also applies to public figures. Not all courts have not specifically defined “public figure,” but they do identify candidates for public office and people who have achieved pervasive fame or notoriety as fitting this description. Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). A public figure could also be someone who voluntarily enters the public eye because of a particular public issue or controversy.


            Courts have upheld this rule based on the U.S. belief that the public should be able to freely discuss national issues without fear of repercussions. If a public official or public figure believes that he or she has been defamed, he or she must prove with convincing evidence that the statement is false. The public official also must prove that the defamer showed reckless disregard for that falsity, either because the defamer knew the statement was false or should have known. Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979).


            It is important to note that while Court decisions regarding this rule have primarily addressed issues related to freedom of the press, the rule applies to any statement, whether made in a newspaper or to an acquaintance on the street. Hutchinson v. Proxmire, 443 U.S. 111, 133 n. 16, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979).


The Private Arena
            Private individuals who believe they have been defamed must prove that the defamer showed negligence in considering or confirming that a statement is false prior to publication, rather than the more stringent reckless disregard. This rule applies also to public officials or public figures relative to personal or private matters.


            A claim must also show fault on the part of the defamer, although the specific standard can vary from state to state. Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323. The question of fault is considered in the following contexts:

The statement is published or conveyed in some way to a third party;
The material is false, although the publisher may have believed it to be true;
The material in the statement may be construed as defamatory based on other extrinsic facts;
The actual statement may be an error, or may have used a word with more than one meaning; and
The defamed person may not be named specifically, but is described.

In any of these instances, the issue of liability is based on whether, in the individual situation, a reasonable person would believe that the defamer should have known that the statement would be seen by a third party, that the content was false, or that the described person was easily identifiable. If a reasonable person would take the time to research the truth or falsity of a statement or believe that a statement should be confirmed before publishing, the defamer will be held to the negligence standard.

Negligence: Conduct that creates an unreasonable risk of harm based on behavior of a reasonable person in like circumstances.

Showing negligence as opposed to reckless disregard is the key difference between a defamation action relative to a public official/figure and a private person or matter. The burden of proof remains on the plaintiff.


Consent as a Defense to Defamation

Consent of the person who allegedly has been defamed is always a complete defense in the event of a defamation claim. The only Can consent be used as a reason for defamation? exception occurs when a person uses republication of defamatory material in order to determine the source of the original publication or to confirm its content or meaning.


Although the person does make a request for the republication, such an honest inquiry aimed at identifying the source of defamatory remarks does not prevent that person’s successful defamation claim against that source.


Otherwise, the consent of the plaintiff provides absolute privilege to the publisher and bars all recovery in a defamation claim. Warr v. Jolly, 6 Car. & P. 497, 172 Eng.Rep. 1336 (1834); Borden, Inc. v. Wallace, 570 S.W.2d 445 (Tex.Civ.App. 1978).


Identifying Consent to Publication

A person may give consent by words, actions or by certain behavior, including inaction. A statement of consent does not have to be directly spoken or communicated to another, and it does not have to be written down in order to be considered valid.


It is enough that the consent is understood by or seems apparent to the publisher as determined by reasonable people based on the conduct of the plaintiff and the circumstances surrounding the publication. Brockman v. Detroit Diesel Allison Division, General Motors, (Ind.App.), 366 N.E.2d 1201 (1977).


The plaintiff does not have to know that the material he approved for publication is defamatory. If he knows the exact language of the publication or has reason to know that it could be defamatory and he gives consent, he is accepting the risk that it could be defamatory. Likewise, if a person participates in an activity, is part of an organization, or allows an investigation knowing the results of any of these will be reported, this constitutes consent and acceptance of the risk that the publication could be defamatory.

In giving consent, the plaintiff may determine the extent of the privilege given the publisher by setting limitations. If no limitations are set, privilege is absolute regardless of whether the publisher exhibits ill will or uses the material inappropriately.


If limitations are set and publication is made outside of those limitations, the publisher does not have the plaintiff’s consent and recovery is not barred in the event of a claim. Royer v. Steinberg, 90 Cal.App.3d 490, 153 Cal. Rptr. 499 (1979)


Consent is not considered valid and cannot bar recovery if it is obtained fraudulently. Nor can a person give consent if he or she is under duress or does not have the capacity to give consent.


The Facts About Removing Content from Google Search

The fact: apart from Google information removal policies, and apart from the information you want gone from Google search results being on Google’s own products/services. You are left alone at the mercy of these website owners who post and publish your details.


And not to mention the sharks, some are just as bad so called Online Reputation Management Services (usually promise you to remove the results) (which in itself is a lie for 99.99% Google search results). Because, online reputation management services must also adhere to Google policies. And perhaps just like you, they will contact the website owners who will usually ignore your email messages.


If you are unsure as to who owns the website your details are at, simply conduct a Whois search, and also note down as much details about the website hosting company (usually emails found with Whois search will reveal which company hosts the website online) (which you may actually contact if contacting the website owner doesn’t result in any response) (you may want to send a letter of abuse about the domain in question to the hosting company. Note that even if the web hosting company takes action, the website owner can easily find another web hosting company to re-put the same detail).


Before you spend a penny, cent, dime, shilling, bitcoin or whatever else currency you are using just remember this :

Google does NOT Own or Control the Search Results as they are automated information and links pointing to other public internet domains.


That means, those who guarantee removal of names or negative reviews usually follow retarded ways to manage reputation (usually, low quality (cheap articles) with so called SEO for higher Google rankings, low quality free for all Web 2.0 backlinks). WARNING: stay away from such practices or else your content found on internet will be even harder to manage because once a company begins on this path, they actually can’t remove that additional information they place on such low-quality websites, as a result causing more harm than good. You can visit Google help section here to Manage your online reputation.

What then happens is that information you want removed may actually go down (if its located on poorly built unpopular scam type of sites) for a little while (this is because Google has a long memory and tracks people’s behaviour once they visit a link from Google search results).


However, if the information you want buried from Google search is on popular websites, then you need to be thoughtful about the dilemma you are facing. Meaning, the more popular the website the information you want buried is at, the harder you will need to work at pushing down those unwanted content


How to Push Down Negative Business Reviews from Google
It is more common than not that a disgruntle customer, competitor, or just outright idiot leaves a bad review for your business (or name if you are a famous person) usually the small business community who suffers due to negative reviews, perhaps, Google Plus My Business Listing Reviews, Facebook Reviews, Yelp Reviews or other review related sites.


What you can do in such scenario is actually be the wiser business owner and actually craft a response because the more time you avoid responding will mean that you are actually losing business. Your reply will counteract the negative review and show others who read it that you are a dedicated business owner who is willing to own up to bad customer service provided by your employees and that you are taking care of this. Being polite and professional will go a long way. This is the first course of action you should take.


If the review is just wrong and provided for your Google My Business Review, then you can flag and report the review by following Flag and fix inappropriate content

Then, second best thing you can do is create a review page on your business website (name it as reviews) for and then title it

HTML < title >ABC Sample Business Reviews

Place positive reviews and mention keywords as ABC Sample Business Reviews, or, Reviews for ABC Sample Business Services etc. at least couple of times throughout your content (you can also include an image on that reviews page and name it like abcsampelbusiness-customer-reviews.jpg etc. and then also provide an option for the next customer to leave a review (simple contact form works best online). Furthermore, getting reviews from your future customers should be part of your business growth online (you can offer incentives for this, try it and you’ll see) but never you buy fake reviews as its just not the right way to go about things online or in life.


You can then invest in owning a domain name in addition to your business domain, for example and then showcase positive reviews on that new site which is rather affordable if you can do it yourself (you can even hire RankYa to quickly set this up and rank in Google using Google SEO mastery skills).


Then it is just matter of understanding that despite your best intentions and efforts, all businesses will every now and then get negative review for a product or service they provide. To manage these types of negative reviews, you must be active and never shy away from replying to rectify this type of responses from customers.


How to Remove Negative Articles from Google
Articles are the easiest to manage online, what you can do is contact the website owner and ask them the remove this information (or get your lawyer to do so). However, most people have their information on websites whose business it is to have the very content you want removed. So your request could fall on deaf ears.


Fortunately, removing negative articles from Google (as in pushing them down in Google results) isn’t that hard, once again, we can not remove content from Google unless it violates Google Policies if the content is within Google guidelines, then, you can only push it down bury it in ranking. Or grab a recently deleted domain name, put out content including the article, back date it and then claim DMCA take down notice. Although I do not recommend that you follow this approach, its still an option isn’t it?

Search Results Firefox Browser Google Organic Listing
Shows Firefox Browser and Google Organic Listing Search Results

Google search results are made up of 10 organic listing, although occupying all the 10 organic listing isn’t hard depending on keywords you want to bury. That means, given that the keywords you want to remove occupy the first 10 results, then, no-body actually visits the second page. In fact, when done right, even if someone visits the second page of Google (which is 11th position) the information they read at that moment will not have authority because you are controlling the first 10 position with the right type of content (you could also control the second page results as well).

At the end of the day, the best advice is to be active in managing your own content found through Google, because its not going anywhere unless you take action.

Defamation and the Defense of Privilege

When a publisher claims privilege in the publishing of material that another believes is defamatory, there can be no recovery. How can some one use privilege as a defense of defamation?Privilege is a complete defense for the publisher. Privilege may be obtained through consent of the person who may be defamed by the material. However, there also are privileges created by law, which are based on a policy that holds that good resulting from allowing publishing of potentially defamatory material outweighs harm that may result. These are absolute privileges and qualified privileges.


Absolute privilege, also called immunity, is granted to a person because his position or status requires that he be able to act in that position without fear of civil action. It will be addressed in this article. Qualified privilege occurs when a particular situation demands that a person be able to freely give information that could be untrue and defamatory. It will be addressed in a later article.


Who Holds Absolute Privilege?
Absolute privilege applies to people who hold special positions and/or positions of status that require them to make public decisions, generally in an official capacity. It is not the same as the constitutional privilege involving public officials and public figures in which a person must prove reckless disregard of the falsity of a statement in the event of a claim. Absolute privilege protects people who must make decisions for the good of the public interest, allowing them to act in their official capacity without fear of civil liability or civil action. If their conduct is threatened even by an unsuccessful civil action, their ability to operate effectively in their official capacity is hampered. These people are generally in the legal field or public service.


Judges/judicial officers:  Judges, judicial officers, and any officials performing judicial functions are protected by absolute privilege. The function may be a judicial proceeding in which a judgment is necessary or it may be a required signature. It may be a meeting or discussion that is held before or after a trial. It may be a statement made that is relevant to a judicial proceeding. As long as it is connected to a judicial function that the judge or officer is performing, it is protected under this rule. Brown v. Shimabukuro, 73 App.D.C. 194, 118 F.2d 17 (1941); Ginsburg v. Black, 192 F.2d 823 (7 Cir. 1951).