1. Introduction

      Pennsylvania follows the Restatement (Second) of Torts in defining whether a communication is capable of being defamatory. There are two types of defamation under Pennsylvania law, requiring different levels of proof: defamation per se, and the remaining claims for defamatory statements that do not fall into a per se category.

      Per se defamation under the Restatement (First) of Torts § 569 (1938), adopted by Pennsylvania, is when a “publication is of such a character as to make the publisher liable for defamation although no special harm results therefrom, unless it is shown to the satisfaction of the trier of fact that the defamatory matter is true or that the defamer was privileged to publish it.” Under Pennsylvania law,” defamation per se can be either words imputing (1) criminal offense, (2) loathsome disease, (3) business misconduct, or (4) serious sexual misconduct.” 1

      A statement that is classified as defamatory per se shifts the burden of proof to the defendant to either prove the truth of the statement or to admit that it is false and establish that the statement is privileged. If the defendant is unable to prove either defense, the plaintiff is entitled to at least nominal damages.

      Statements that are actionable per se are false “imputations affecting another’s business, trade, profession, or office,”2 and “[l]ibelous imputation of immorality.” 3 The latter is defined as an accusation “in libelous form . . . of any sexual misconduct irrespective of whether the misconduct constitutes a criminal offense or whether it harms the other in his business, trade or profession. Thus it is actionable per se to accuse by a libelous publication either a man or woman of adultery or fornication or to accuse another of keeping a house of ill fame or frequenting such a house. Any abnormal sex conduct or tendency comes within the rule stated in this Section whether or not the same constitutes a crime. So too, it is libelous to charge another with insulting proposals to members of the opposite sex, or any kind of lascivious or grossly immodest conduct.” 4

      If a statement is not defamatory per se, a plaintiff must show “special harm” to recover. 5

  2. Elements

      (1) The defamatory character of the communication;

      (2) Its publication by the defendant;

      (3) Its application to the plaintiff;

      (4) The understanding by the recipient of its defamatory meaning;

      (5) The understanding by the recipient of it as intended to be applied to the plaintiff;

      (6) Special harm resulting to the plaintiff from its publication; and

      (7) Abuse of a conditionally privileged occasion.6

    A communication is defamatory if it:

      (1) Tends to harm the reputation of another as to lower him in the estimation of the community; or

      (2) Tends to deter third persons from associating or dealing with him.7

  3. Cases

    1. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 769 (E.D. Pa. 2016)

      • Procedural Posture: Defendant moved to dismiss Plaintiff’s claims for defamation and invasion of privacy.
      • Law: defamation, invasion of privacy (false light)
      • Facts: Plaintiff brought suit against a former lover who had included descriptions of their relationship in a biography, and the biographer’s publishing company. Plaintiff claimed portions of the biography that included descriptions of the plaintiff as a “star seducer,” describing their relationship as “100 percent sexual,” and as a person who exchanged sexual activity for money, were defamatory, defamatory per se, and painted plaintiff in a false light.
      • Outcome: Considering the allegations in a light most favorable to the plaintiff, the court found the statements referring to plaintiff as a person that “picked up” men, referring to her as a “star seducer,” and inferences that plaintiff was a “venal harlot” were reasonably capable of a defamatory meaning. The court dismissed as not reasonably defamatory content alluding to plaintiff’s interest in the defendant’s wealth, as well as the relationship being “100 sexual,” as the context of the novel surrounding those statements contained content discussing non-sexual aspects of their relationship that could not be found as “grievously fractur[ing]” plaintiff’s standing in the community. This content included plaintiff’s receipt of a stipend from defendant. The court also allowed a separate claim of defamation per se to proceed relating to plaintiff’s depiction as someone who exchanged sex for money, finding it could constitute “serious sexual misconduct” under Pennsylvania law. (For ruling on False Light, see above.)
    2. D’Errico v. DeFazio, 763 A.2d 424, 434 (Pa. Super. Ct. 2000)

      • Procedural Posture: Plaintiffs appealed from a grant of defendant’s motion for summary judgment.
      • Law: prima facie tort, defamation
      • Facts: Plaintiffs alleged defamation and prima facie tort, among claims of official oppression and assault, against defendant, a Chief Sheriff Deputy, who was engaged to accompany plaintiffs from their former place of employment upon their termination. Plaintiffs claimed the presence of the officer in escorting them caused them humiliation and fear. They claimed by using the officers, the defendant was portraying to the public that the plaintiffs were lawbreakers, and thus stated a defamatory falsehood.
      • Outcome: In addition to holidng that Pennsylvania does not recognize a claim for prima facie tort, the court found in favor of the defendant on the defamation claim. The court distinguished the case of slander from humiliating conduct that is intended to convey a defamatory message, and the communication in the case at hand. The court found that latter—escorting the plaintiffs from their former employment—did not attempt to convey a defamatory statement.
  4. Practice Pointer

    In determining the defamatory character of the language, the court “must consider the full context of the article to determine the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” 8

  1. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 775 (E.D. Pa. 2016) (citing Synygy, Inc. v. Scott–Levin, Inc., 51 F.Supp.2d 570, 580 (E.D.Pa.1999), aff’d sub nom., Synygy, Inc. v. Scott–Levin, 229 F.3d 1139 (3d Cir. 2000)). 

  2. Restatement (First) of Torts § 569 comment (e) (1938). 

  3. Restatement (First) of Torts § 569 comment (f) (1938). 

  4. Restatement (First) of Torts § 569 comment (f) (1938). 

  5. Restatement (First) of Torts § 614 (1938). 

  6. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 766–67 (E.D. Pa. 2016). 

  7. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 528 (E.D. Pa. 1982) (this determination is a question of law made by the court); this standard is also defined in 42 Pa. Cons. Stat. § 8343(a), “Burden of Proof in an Action for Damages.” 

  8. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 768 (E.D. Pa. 2016) (quoting Tucker v. Phila. Daily News, 577 Pa. 598, 848 A.2d 113, 124 (2004)).