How do you determine the difference between a “public concern” and a “private concern” in a defamation lawsuit?

In South Dakota, the courts will decide whether a statement is a “public concern” or a “private concern” in a defamation lawsuit. The distinction between public and private concerns is important because defamation can only be established in cases involving a public concern. To determine whether a statement is a public concern or private concern, the courts will usually consider the language used in the statement. Statements that relate to government policy or other matters of public interest, such as a public figure’s performance in office, are usually considered to be public concerns and will likely result in a successful defamation lawsuit. In contrast, statements that relate to an individual’s private life, such as their personal disputes or family and financial matters, are usually considered to be private concerns and therefore cannot be the basis for a valid defamation claim. Statements about a person’s work performance, conduct in the workplace or personal reputation in the community, however, may be considered “mixed statements” that contain both public and private components and could be the basis of a valid defamation claim. Finally, South Dakota courts have held that the context in which a statement is made is also important when considering whether a statement is a public or private concern. A statement made in a public forum, such as a newspaper, is more likely to be considered a public concern and could result in a successful defamation lawsuit.

How do you determine the difference between a “public concern” and a “private concern” in a defamation lawsuit?

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