When privileges against defamation, e.g., the Privilege for Communication to Interested Persons, are in play, or where a private plaintiff seeks to win punitive damages, the plaintiff must show actual malice motivating the defendant.
To do so, a libel or slander plaintiff in California must plead and prove the defendant either 1) knowingly and intentionally defamed him or her, or 2) recklessly disregarded the truth or falsity of the statements. Proving reckless disregard of the truth or falsity of the defendant’s statements presents challenges.
As one court put it last month, (Lynch v. Margaret Ackley, et. al., September 24, 2014, Memo of Opinion No. 3:12-CV-537 (MPS)), “…there must be sufficient evidence to permit the conclusion that the defendant had serious doubts as to the truth of her or his publications, or that [she or he] acted with a high degree of awareness of provable falsity. Reckless conduct is not measured by whether a reasonably prudent [person] would have published or would have investigated before publishing.”
In most cases, the plaintiff must prove her or his case by showing it is more likely than not that her or his facts justify a favorable judgment. However, proving actual malice or reckless disregard of truth or falsity by a defendant requires higher evidence of convincing clarity. Evidence showing mere negligence or great sloppiness by the defendant is not enough. The plaintiff must convince the judge or jury the defendant entertained serious doubts about their accuracy when publishing the alleged defamatory statements. Compelling convictions the defendant “must have had” serious doubts about the truth of her or his statements cannot by themselves prove actual malice.
Courts subjectively evaluate malice court in each case. The plaintiff typically and properly advances circumstantial evidence of motive to show malice or reckless disregard by the defendant.