Element #2: Fault

The second element of defamation is fault: the plaintiff must prove you were at fault when you made the defamatory statement. There are two kinds of fault:

Negligence means you should have known the statement was false.

Actual malice means you either knew the statement was false or you acted with a reckless disregard for the truth. Actual malice is much harder to prove than negligence.

Which level of fault must the plaintiff prove? It depends on whether they’re a “public figure” or a “private figure”, and whether certain kinds of privilege apply.

Public and private figures

The law grants private individuals more protection from defamation than public individuals. In general, a plaintiff who is a private figure only has to prove the defendant was negligent in making a false statement about them, while a plaintiff who is a public figure has to prove actual malice.

There are actually three types of plaintiff:

• Public figures are individuals who are widely known and whose lives are matters of general public interest. The bar for being a public figure is quite high: well-known celebrities are probably public figures, but minor celebrities probably aren’t.
• Most people are private figures, whose lives are not of general public interest.
• Limited purpose public figures are private figures who have voluntarily thrust themselves into a public debate related to the subject of the lawsuit.

The criteria for limited purpose public figures are particularly unclear. The idea is that limited purpose public figures have significant prominence in a particular debate and have voluntarily participated in it to shape public opinion. It is the opinion of our defamation expert that kink educators and leaders are probably not limited purpose public figures with regard to kink and consent issues, but this is far from certain.

Litigation privilege

Litigation privilege is a broad privilege that protects statements made in connection with legal action. It covers communication between a laywer and their client, testimony during a trial, and related communications like demand letters.

Litigation privilege is an absolute privilege in Washington and many other states.

Common interest privilege

Common interest privilege applies to a statement made to a limited group to advance the common interest of that group. It is a qualified privilege, so the plaintiff must prove actual malice even if they are a private figure. Common interest can be useful for consent activists but it is complicated and has important limitations.

When deciding if common interest privilege applies to a particular statement, the court will consider:

• Was the statement made to a closed group with a common interest?
• Was the common interest clear and compelling?
• Was the statement directly in service of the common interest?
• Were there ulterior motives? The courts are often skeptical about derogatory statements made about competitors.

A manager sharing information about an employee’s performance with their employer would likely be protected by common interest privilege. Publication is restricted to the employer and manager, they have a clear common interest in managing the employee, and the information is in clear service of that interest.

Common interest privilege is fairly narrow. It would likely apply to:

• The staff of a venue discussing whether to ban someone for a consent violation.
• A mailing list for sharing information about dangerous educators, which is limited to people who produce kink events.
• A mailing list for sharing information about harmful rope tops, which is limited to rope bottoms.

Common interest privilege probably would not apply to any social media post or to a mailing list that was open to the general public.

Incidentally, “common interest privilege” can also refer to a kind of client-attorney privilege.

See Use Common Interest for practical applications.

Consent to publication

Consent to publication is an absolute defense against defamation: if the plaintiff agreed to let you make a statement, they cannot sue you for making it.