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The Libel-Proof Theory and Its Real-World Application

On the Internet, individuals can go out and make attempts to rib each other, or to mock certain celebrities or infamous individuals. This opens the realm of libel and slander laws to expand towards online activities. Yet, depending on the person’s history, defamation may be borderline impossible.  If defamation is harm to one’s reputation, then theoretically it should be impossible to harm an irredeemable reputation.  This idea is a concept known as being libel proof — i.e., a person who cannot be defamed any longer.  So, can a completely libel-proof person exist? How could someone argue the individual is libel proof? How might this affect online communications?

What is libel proof?

Libel proof means, quite simply, that a person cannot be defamed any further.  Generally, to even satisfy libel, it would have to be an unprivileged false written statement that was published towards third parties (compared to slander, which is an unprivileged false oral statement that was published towards third parties).  Even then, defamatory statements are judged differently to protect free speech interests.

For public individuals, a “malice” requirement is added on, requiring a reckless disregard for the truth (compared to other ideas of malice, which would require bad faith).  Yet, private individuals still don’t have that standard, and instead the publisher or originator of the defamatory statement would only need to be found negligent in his or her conduct.  Reverting to the idea of a libel-proof plaintiff, if his/her reputation is already known as terrible, then it leads to a “free pass” to lambast the individual, even if presumably, the information released is completely false in its nature.

Yet, to be libel proof, is to have no good reputation at all, presumably meaning that to truly be libel proof, the bad reputation would have to be well known to the public to ensure no further damage could be sustained.  Thus, the defamation-proof individual is likely to be limited to those famous individuals, as their reputation, which would be widely known and reasonably damaged as to cause no harm.

The Test Case:

Recently, the idea of a “libel-proof” individual came up with Donald Trump in regards to a news story and claims published by the New York Times.  Trump, at the time mused about suing the organization for defamation.  This prompted a letter from the organization’s attorney, introducing the idea that Trump is libel proof, so no harm could be done to him by the reports.  This idea of a “libel-proof” nature to the candidate then took off.

However, the idea of a libel-proof individual has never been fully acknowledged or tested in the courts.  It has been bounced around beforehand as a legal theory with various interpretations ranging from “general libel proof” where the entire reputation is trashed, to a more reasonable subject specific version.  For example, if a person is well known for a certain moral flaw, then he/she may be libel proof on that moral flaw, but not some other aspect of his/her character.  Also, there is the off-chance that the idea of a libel-proof individual could be severely limited to celebrities and public officials who would be well-known enough to yield a truly terrible reputation.

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