Libel without a name?
Published October 2022
A parent’s apparently false allegation at a public November school board meeting that an administrator in Richland County School District Two had strip searched his daughter led to a defamation lawsuit against the parent, and against The Voice of Blythewood and Fairfield County for reporting on the allegation. An investigation concluded that the strip search had not occurred.
The defamation claims were made against the newspaper even though The Voice never named the school administrator accused of conducting the strip search in its articles on the allegation. The newspaper also did not name the parent who made the allegation, nor did it name the daughter. The newspaper did originally identify the school at which the incident allegedly took place.
The administrator’s claims against The Voice were withdrawn by the plaintiff in August, although claims against a parent remained. Yet the filing of the lawsuit points to an important component of defamation law: can a plaintiff sue for libel even if s/he is not actually named in the allegedly libelous article?
One of the fundamental requirements of a defamation claim is that the allegedly libelous statement must be “of and concerning” the plaintiff: that is, the statement must make a false, defamatory statement about a particular individual or entity that harms the individual’s or entity’s reputation. Obviously, if the person or entity is clearly identified by name and other particular characteristics, that person or entity can easily prove who or what the statement refers to.
But the law also allows this “identification” requirement to be met by proving that a reasonable recipient of the communication would understand it as referring to the plaintiff, even if that is not what the author of the statement intended. (Although if the speaker did not intend to talk about the plaintiff, that could cause other problems with the claim, such as inability to prove that the plaintiff made the statement with “actual malice” or negligence.) Thus, a defamation lawsuit can proceed even if the plaintiff is not named in the statement at issue, as long as someone would reasonably understand the statement to be referring to the plaintiff. This has been a principle of South Carolina libel since at least 1828.
For example, the South Carolina Court of Appeals held in a 2019 decision that a newspaper’s reporting about a high school football team’s post-victory locker room ritual that was alleged to be racially insensitive was not “of and concerning” the individual players and coaches who had sued for libel, when the articles only discussed the team as a whole. The South Carolina Supreme Court has agreed to hear an appeal of this ruling.
The claims against The Voice were withdrawn before a court had to decide whether the scant information in the newspaper’s articles were enough to identify the school administrator.
So it is possible for someone to sue for libel if they are not specifically named in the allegedly defamatory statement, but they have to prove that a reasonable person would understand the statement to be about them. If a newspaper decides to not identify a person by name in a news report that contains information that may be defamatory, the paper will also want to avoid providing other information that can lead to the identification of the specific person.
If a news outlet decides to not identify a person or entity, care must be taken to exclude not only the name but also other specifics about the particular individual or entity that can be used to identify them, reducing the likelihood of a sustainable legal claim.
Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.