To survive a defense motion for summary judgment, a defamation plaintiff must establish falsity, an unprivileged communication, fault, and damages. Case law is unclear as to whether a private plaintiff facing a defense motion for summary judgment must make a prima facie showing of all of the elements of defamation with convincing clarity or by a preponderance of the evidence. The preponderance of the evidence standard requires that the evidence establish the proposition at issue is more probably true than not true.
Respondents, Eliot B. Mohr and Mohr & Company, Inc., d/b/a Kitchen Interior Showcase (hereinafter Mohr or KIS), filed a defamation suit alleging that a series of newscasts aired by petitioners, KXLY-TV and reporter Tom Grant (hereinafter KXLY and Grant), were defamatory because they contained false statements and omitted material facts. The trial court granted KXLY and Grant's motion for summary judgment, holding that Mohr failed to establish falsity with convincing clarity because the newscasts did not contain false statements and the newscasts were substantially true. The Court of Appeals reversed, holding that Mohr presented sufficient evidence as to whether material omissions rendered the newscasts defamatory.
Do true statements create a false impression by omission of material facts and therefore result in defamation by implication?
To survive a defendant's motion for summary judgment, a plaintiff must make a prima facie showing as to all the defamation elements. In a defamation by omission case, the plaintiff must show with respect to the element of falsity that the communication left a false impression that would be contradicted by the inclusion of omitted facts. Merely omitting facts favorable to the plaintiff or facts that the plaintiff thinks should have been included does not make a publication false and subject to defamation liability. The Fifth Circuit rejected a defamation plaintiff's claim that a news report was misleading because the broadcaster did not include all the potentially relevant information about the plaintiff. The Green court found that since "CBS accurately reported the facts, albeit not all of the facts, whether or not the story painted [the plaintiff] in an attractive light is irrelevant." The court held that even though including more facts would have led to a more balanced report, the broadcast did not create a false impression and thus was not defamatory.