Some statements are naturally and obviously harmful; they are considered per se defamatory.
In defamation per se claims, plaintiffs don't have to prove injury because the harm to is presumed.
For example, falsely calling someone a criminal would fall under the per se umbrella."
In this context, I am wondering about its usage w.r.t. the email to buzzfeed, is that considered "publishing".
If not, I would have thought then that the libel would be on buzzfeed side, for publishing unsubstantiated rumors. At the very least, the act of "publishing" was performed by buzzfeed, even if they had caveat with "Musk emailed this to us..." .
With respect to Musk tweets, no doubts there, he clearly "published".
Publishing for purpose of defamation is communicating the message to another person by any means.
> If not, I would have thought then that the libel would be on buzzfeed side, for publishing unsubstantiated rumors
BuzzFeed published true facts, to wit, that Elon Musk had mailed them certain claims. Falsity being a required element of defamation (whether libel or slander), their publication can not be defamatory.
> if they had caveat with "Musk emailed this to us..." .
That's not a caveat, it indicates a completely different fact claim; the claim “Joe said X did Y” is a distinct fact claim from the claim “X did Y”.
So, even if buzzfeed had not published to their website, Musk had already published to buzzfeed. Interesting !
Actual malice is the standard of proof public figures must satisfy to win a defamation lawsuit.
Essentially, actual malice is present when a defendant knowingly pubishes or broadcasts a false statement of fact.
Reckless disregard for the truth amounts to actual malice in some jurisdictions."
Elon is fighting this because he can, but even his lawyer would know it's a loser. OTOH, it's probably a fun case for the lawyer, like the cases assigned in law school that are designed to be losers but you make it a personal challenge to see how far you can take it. Plus he's getting paid well.
To win a U.S. defamation lawsuit, the plaintiff, at the very least, must prove that the defendant:
Published or otherwise broadcast an unprivileged, false statement of fact about the plaintiff; Caused material harm to the plaintiff by publishing or broadcasting said false statement of fact; Acted either negligently or with actual malice;
Free Speech Vs Defamation:
In the United States, federal defamation law is closely tied to the First Amendment. As a result, federal slander and libel laws are more defendant-friendly in the U.S. than those in common law countries, like the U.K. and Canada. In short, opinion is not considered defamation in the U.S. That being said, false statements of fact that harm the reputation of an individual or business, aren't protected under Constitutional Free Speech provisions."
http://kellywarnerlaw.com/us-defamation-laws/