South Dakota Defamation Laws

South Dakota Definition of Defamation

In South Dakota, defamation is separated into two distinct classes – slander and libel. Under state law, SDC 1939, § 47.0501, every resident “is obligated to refrain from infringing upon the right of others not to be defamed.”

Libel is defined as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

Slander in South Dakota is defined as “a false and unprivileged, other than libel, which: (1) Charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) Imputes to him the present existence of an infectious, contagious, or loathsome disease; (3)  Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; (4) Imputes to him impotence or want of chastity; or (5) By natural consequence, causes actual damage.”

South Dakota is a Per Se State

South Dakota recognizes defamation per se.

Defamation Per Se is any type of slander or libel that is considered to be inherently damaging. In most defamation per se lawsuits, the plaintiff does not have to prove malice, as the malice is already accepted. For example, alleging that a defamation defendant murdered another individual is usually considered defamation per se since most would agree that accusing someone of murder, if they did not commit the act, is inherently damaging.

Privileged Communications & Defamation

Under South Dakota defamation law, malice cannot be inferred from privileged communications.

A privileged communication is one made: “(1) in the proper discharge of an official duty; (2) In any legislative or judicial proceeding, or in any other official proceeding authorized by law; (3) In a communication, without malice, to a person interested therein, by one who is also interested, or by one who stands in such relation to the person interested as to afford a reasonable group for supposing the movie for the communication innocent, or who is requested by the person interested to give the information;” or (4) By a fair and true report, without malice, of a judicial, legislative, or other public official proceeding or of anything said in the course thereof.

Defamation Liability Rules For Radio & Television Stations

In South Dakota law, precise stipulations are made about the liability of radio and television stations. In brief, statutes don’t give much leeway to those who want to sue media outlets for things guests say on air. Specifically, the law reads:

The owner, licensee, or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of any such owner, licensee, or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, by one other than such owner, licensee, or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, or such agent or employee, has failed to exercise due care to prevent the publication or utterance of such statement in such broadcast.

The Rules For Notifying Newspapers, Publishers & Editors of An Upcoming Defamation Filing

South Dakota has a special rule concerning newspapers, publisher, editors and media managers. The state statute outlines a process in which the aggrieved party must notify a newspaper, publisher, etc. at least three days before the claim is filed.

If it is determined that the statement or statements were written or published in good faith, and a full and fair retraction is published in the next issue of the paper, or in the case of a daily paper within three days after the mistake was brought to the attention of the publisher, editor, or manager, the plaintiff will not be entitled to punitive damages. Additionally, the retraction must be as conspicuous as the original statement and in the same position in the paper.

Lastly, if the libel is against a candidate running for office, the retraction must also be made editorially. In the case of a daily paper, the content must be published at least three days before the election, and in the case of a weekly paper, at least ten days before the election.