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Tort Law-Defamation, Opinion, and Social Media: Distinguishing Hyperbole and Constitutionally Protected "Opinions" from Actionable Defamation- Jacobus v. Trump, 51 N.Y.S.3d 330 (N.Y. Sup. Ct. 2017).
"Twibel," a term often used to describe social media libel, has brought a plethora of unique challenges to courts in deciding social media defamation actions.1 Even though defamation laws vary slightly from state to state, the elements of common law defamation are relatively uniform. Generally, to sustain a defamation cause of action a plaintiff bears the burden of pleading four requisite elements.2 The first element the plaintiff must plead is a false statement.3 Second, the false statement must have been published to a third party.4 Third, the plaintiff must establish the defendant acted without privilege or authorization.5 Finally, the fourth required element is an assertion that the defendant's false statement resulted in harm to the plaintiff.6
The first three requisite elements-a defamatory statement that is false, publication to a third party, and the defendant's lack of privilege or authorization-are necessary for any defamation cause of action.7 However, in a cause of action for defamation per se, the allegation of harm may not be a required element because nominal harm may be presumed.8 In Jacobus v. Trump,9 the plaintiff contended that the defendants, including then presidential candidate Donald Trump, were liable for libel per se.10
An examination of the content and context of the statement is necessary for a court to classify a statement as defamation per se.11 In order for a statement to be held as defamation per se, it must fall under one of four narrow classifications.12 The first classification category is an allegation of a crime involving moral turpitude.13 Second, an allegation of contamination or prognosis of a loathsome disease is also sufficient for a court to find a statement as defamation per se.14 Today, an alleged loathsome disease is rarely the subject of a defamatory per se claim.15 The third and fourth classifications, sufficient for a court to hold a statement as defamatoryper se, are an allegation of a plaintiff's conduct adverse to a business or a profession, or a false implication that a woman is unchaste.16
Over the years, the tort of defamation has undergone a distinct evolution. Until the civil rights era, defamation was solely...