Laws on Defamation: Could They Affect Environmental Health Professionals? (Legal Briefs)
Sikora, Vincent A., Journal of Environmental Health
Environmental health professionals generally have a wealth of information, suspicions, and opinions about businesses in a community. For example, a health inspector would know about the sanitary conditions of various establishments--that occasionally some kitchens do not wash or pluck their chickens, that a septic-tank installer may cut corners and use inferior-grade materials, that a hotel's kiddie pool sometimes lacks adequate chlorine and that its guests may urinate in the pool, or that the department receives many complaints about certain apartments having rats or roaches. Although such conditions and actions may not be illegal, the information, suspicions, and opinions could be embarrassing or financially harmful to some person or some business.
As a matter of human nature, sometimes that information is shared with co-workers, family, friends, neighbors, or acquaintances. This kind of dialogue raises several questions. One issue is department policy about the confidentiality of the information it has gathered and the propriety of disseminating the information. Another issue is whether the dissemination may constitute defamation (slander or libel). The latter issue is the subject of this column.
Defamation is the unprivileged intentional dissemination to a third person of false information about another that causes damage:
A statement is defamatory when it tends to expose a person to contempt, hatred, ridicule or obloquy; or which causes a person to be shunned or avoided; or which has a tendency to deprive him of the benefits of public confidence or injure him in his occupation.... (1)
Slander is oral defamation. Libel is written defamation. Actual and factual truth of the information is an absolute defense. Slander often has a short statute of limitations, and libel has a longer limitations period. Newspapers and public media have special protections against defamation lawsuits as a result of the First Amendment. (2)
Generally, special damages (direct economic loss) must be proven unless the defamation is "on its face." This means the words or images, by themselves, defame an identifiable person's character. There are typically four types of defamations against someone that are actionable on their face: (1) an accusation of criminal behavior or of conviction of a crime; (2) an accusation that a person had, has, or carries a loathsome disease; (3) disparagement of a person's profession or business; and (4) accusing a woman of being unchaste. (3)
Environmental health professionals employed by state or local governments generally feel secure from liability suits because of government immunity statutes. The typical immunity statute, however, provides no employee protection for intentional torts committed outside the employee's scope of employment. (4) It would be hard to imagine that slandering a business would be within an employee's scope of employment. Therefore, willful or malicious slander or libel, or defamation performed for personal financial gain by an environmental health official may not be covered or protected. Because of the expense and uncertainties of slander litigation, few lawsuits are actually filed. Yet, as business reputations become more valuable, as catastrophic losses makes owners desperate, and as the technological ability to track disparaging statements continues to improve, a slander lawsuit against an environmental health official is not just an imaginary danger. …