Defamation

New York recognizes two forms of defamation: libel and slander.

Libel

Libel is written or otherwise recorded defamation. It includes statements published in newspapers, books, magazines, emails, text messages, websites, blogs, social media posts, online reviews, videos, and other digital media.

Because written statements can be preserved and widely shared, libel claims are far more common today.

Slander

Slander involves spoken defamatory statements.

Although slander remains actionable, it is often more difficult to prove because spoken statements may leave no permanent record.

One of the most common misconceptions about defamation is that every harmful statement is defamatory.

It is not.

The First Amendment generally protects opinions.

For example:

• “I thought the restaurant was terrible.”
• “In my opinion, she’s a bad manager.”

These statements express subjective opinions rather than objectively verifiable facts.

However, simply beginning a statement with “I think” or “in my opinion” does not automatically shield it from liability. If the statement implies undisclosed defamatory facts, it may still be actionable.

Courts evaluate the entire context in which a statement was made, including how a reasonable reader or listener would understand it.

Truth is one of the strongest defenses to a defamation claim.

Even if a true statement causes significant reputational harm, it generally is not defamatory.

New York courts also recognize the doctrine of substantial truth. Minor inaccuracies usually do not create liability if the overall “gist” or substance of the statement is materially true.

The legal standard for defamation depends in part on who is bringing the lawsuit.

Private Individuals

Private individuals generally must prove that the defendant acted negligently in publishing the false statement.

Public Figures

Public officials, celebrities, and certain public figures face a much higher burden.

They generally must prove that the defendant acted with actual malice, meaning the statement was published knowing it was false or with reckless disregard for whether it was true or false.

This heightened standard reflects the strong constitutional protections afforded to speech on matters of public concern.

Some statements are considered so inherently damaging that the law presumes injury without requiring proof of specific economic losses.

Under New York law, defamation per se generally includes false statements that:

• accuse someone of committing a serious crime;
• injure a person in their trade, business, or profession;
• allege that a person has a loathsome disease; or
• falsely impute serious sexual misconduct.

Even in defamation per se cases, the plaintiff must still establish the other required elements of the claim.

Today’s defamation disputes increasingly arise online.

Potentially defamatory statements may appear on:

• Google reviews;
• Yelp;
• LinkedIn;
• Facebook;
• Instagram;
• TikTok;
• X (formerly Twitter);
• Reddit;
• blogs;
• podcasts; and
• YouTube channels.

A single viral post can reach millions of people in a matter of hours, making prompt legal evaluation particularly important.

Not every negative online review is defamatory. Many reviews express opinions rather than false statements of fact. Others may be protected by privilege or constitutional defenses.

Many defamatory statements are posted anonymously.

Although anonymity presents additional challenges, New York courts may allow plaintiffs, in appropriate circumstances, to seek discovery identifying anonymous posters.

Whether anonymous speech can be unmasked depends on balancing First Amendment protections against the plaintiff’s right to pursue a legitimate legal claim.

Several defenses may defeat a defamation claim.

Truth remains a complete defense.

Pure opinion generally cannot support a defamation lawsuit.

Certain statements receive legal protection because of where or why they were made.

Examples include:

• statements made during judicial proceedings;
• legislative proceedings;
• certain governmental proceedings;
• fair and true reports of official proceedings; and
• communications protected by qualified privilege, such as certain employment references or reports to law enforcement.

Whether a privilege applies depends on the circumstances surrounding the communication.

A person who consented to publication generally cannot later sue based upon that publication.

Available damages vary depending on the facts of each case.

Possible damages may include:

Compensatory Damages

These compensate for actual harm, including:

• reputational injury;
• emotional distress;
• humiliation;
• lost business opportunities;
• lost income; and
• other provable financial losses.

Presumed Damages

In cases involving defamation per se, damages may sometimes be presumed without proof of specific economic loss.

Punitive Damages

Punitive damages may be available in limited circumstances involving particularly egregious or malicious conduct.

New York follows the single publication rule.

Generally, a plaintiff has one cause of action arising from the first publication of defamatory content, even if multiple people later read or access the same publication.

Simply leaving an article or social media post online usually does not restart the statute of limitations.

However, a true republication, such as materially editing and republishing content to reach a new audience, may create a new claim and a new limitations period.

Defamation claims in New York are generally subject to a one-year statute of limitations.

Because this deadline is relatively short, individuals and businesses should consult counsel promptly after discovering potentially defamatory statements.

New York has significantly expanded its anti-SLAPP protections.

In cases involving matters of public interest, defendants may have additional statutory protections against lawsuits intended primarily to silence protected speech.

Anti-SLAPP laws may also permit prevailing defendants to recover attorney’s fees and other litigation costs in appropriate circumstances.

Because these laws can substantially affect both plaintiffs and defendants, they should be evaluated early in any potential defamation dispute.