Actionable defamation generally requires a false statement of fact that detracts from the target’s business, professional, or individual standing. Defamation law is hedged by a host of United States Supreme Court rulings pivoting on freedom of speech and due process or personal jurisdiction.
If you are a public figure or public official, you are precluded from suing for defamation absent proof that the false and defamatory statement of fact was made with actual malice–with knowledge of its falsity or with reckless disregard of whether it was true or not. Under the First Amendment, expressions of opinion cannot be the foundation of a defamation suit. You may be a public figure if you have thrust yourself into a controversial public issue.
If you are a private individual or business, actionable defamation still requires proof that a defamatory false statement of fact was published negligently. There can be no strict liability for defamatory falsehoods under the First Amendment.
In the Digital Age, defamatory statements frequently are published over the Internet, which creates enforcement difficulties. identifying the defamer can be problematic with anonymous email addresses. Interent service providers are generally shielded from liability for what others post. And frequently defamers cannot be sued in the jurisdiction where you may have been defamed because due process requires that an out-of-state defendant have “minimum contacts” with the forum state.
Several jurisdictions also have special statutes to deter defamation actions stemming from statements made in public forums about political matters. They are often referenced as “anti-SLAPP” (Strategic lawsuit against public participation).
The Internet has also given defamation an international dimension. Many jurisdictions such as Great Britain have substantially less barriers to defamation than in the United States, which encourages forum shopping there. In response, the Securing the Protection of our Enduring and Established Constitutional Heritage (SPEECH) Act was enacted that makes foreign libel judgments unenforceable in U.S. courts, unless either the legislation applied offers at least as much protection as the U.S. First Amendment(concerning free speech), or the defendant would have been found liable even if the case had been heard under U.S. law.
The SPEECH Act was passed by the 111th United States Congress and signed into law by President Barack Obama.