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The dictionary defines libel as:

a published false statement that is damaging to a person's reputation

In the USA, is the opposite illegal? That is:

a published false statement that is beneficial to a person's reputation

For example, suppose a person was engaged in an organized campaign to spread the false idea that Donald Trump has an IQ of 160. Would this be illegal under any circumstances?

Sean Mackesey
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It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical").

A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect.

The plaintiff made a claim under the Fair Credit Reporting Act because the information was false.

However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete.

On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact.

  • Thanks @Dawn. So if I understand, you're saying there is no generic law prohibiting, or legal term describing, the publication of false information meant to inflate a person's reputation. But such an action might run afoul of more constrained laws (e.g. the Fair Credit Reporting Act). – Sean Mackesey Aug 22 '16 at 21:18
  • @SeanMackesey That is correct. Although, Spokeo clarifies (emphasis mine): "Congress’ role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation." The critical element is injury-in-fact. –  Aug 22 '16 at 21:27
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    @SeanMackesey If somebody tells a falsehood and there is no injury-in-fact, then there is no standing to sue. If somebody tells a falsehood and there there is injury-in-fact, then it is a standard libel analysis. –  Aug 22 '16 at 21:29
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Differentiate between libel and slander. In law school the nemonic was libel = library,thus written published statements; slander = speech, thus spoken published statements (to @ least one other person).

But if your hypo is factually proximate, be careful: There is a different analysis for public figures (e.g., movie stars) and public officials (e.g., politicians), which are required to prove actual malice—knowing the statements are false or having acted with reckless disregard as to their falsity—at the time they were published. See, e.g., http://www.dmlp.org/legal-guide/proving-fault-actual-malice-and-negligence. Donald Trump could perceivably qualify under either, but without a doubt under at least one. If it wasn't onerous enough to have to prove an alleged tortfeasor acted knowingly, courts require "public" plaintiffs to prove this with a showing of clear and convincing evidence. To help you grasp this in spite of the unhelpful & murky legal terms, here is a good wrap up of how courts usually apply this scrutiny to "public" plaintiffs:

Unlike the negligence standard . . . the actual malice standard is not measured by what a reasonable person would have published or investigated prior to publication. Instead, the plaintiff must produce clear and convincing evidence that the defendant actually knew the information was false or entertained serious doubts as to the truth of his publication. In making this determination, a court will look for evidence of the defendant's state of mind at the time of publication and will likely examine the steps he took in researching, editing, and fact checking his work. It is generally not sufficient, however, for a plaintiff to merely show that the defendant didn't like her, failed to contact her for comment, knew she had denied the information, relied on a single biased source, or failed to correct the statement after publication.

Best of luck.

Damian Hakert
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