The Sentence That Costs You: Defamation, Publisher Risk, and the Liability That Copyright Does Not Cover
By Casey Scott McKay ·
Content businesses spend their legal budgets on copyright and get sued for defamation. The two risks look similar from a distance and behave nothing alike: copyright asks whether you copied, defamation asks whether a statement of fact about an identifiable person was false and damaging and published with the required degree of fault. This article works through the elements as a publisher encounters them, the public figure and actual malice distinctions that decide most cases, the opinion boundary that is narrower than writers believe, republication and the archive problem, retraction statutes and anti-SLAPP procedure, and the insurance tender that should happen on day one. It ends with the pre-publication review process that prevents most of it.
IP and Technology > Internet | Article | Published 5 March 2024 - Updated 28 March 2025 | Casey Scott McKay - marksy.us
Summary. Content businesses spend their legal budgets on copyright and get sued for defamation. The two risks look similar from a distance and behave nothing alike: copyright asks whether you copied; defamation asks whether a statement of fact about an identifiable person was false and damaging and published with the required degree of fault. This article works through the elements as a publisher encounters them, the public figure and actual malice distinctions that decide most cases, the opinion boundary that is narrower than writers believe, republication and the archive problem, retraction statutes and anti-SLAPP procedure, and the insurance tender. It ends with pre-publication review.
Keywords: defamation · actual malice · public figure · opinion and fact · republication · single publication rule · retraction statutes · anti-SLAPP · media liability insurance · false light · trade libel · product disparagement · Section 230 · source protection · pre-publication review
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