Actual Malice

Actual malice in United States law is a condition required to establish libel against public officials or public figures and is defined as "knowledge that the information was false" or that it was published "with reckless disregard of whether it was false or not." Reckless disregard does not encompass mere neglect in following professional standards of fact checking. The publisher must entertain actual doubt as to the statement's truth. This is the definition in only the United States and came from the landmark 1964 lawsuit New York Times Co. v. Sullivan, which ruled that public officials needed to prove actual malice in order to recover damages for libel.

This term was not newly invented for the Burgoss case, but was a term from existing libel law. In many jurisdictions proof of "actual malice" was required in order for punitive damages to be awarded, or for other increased penalties. Since proof of the writer's malicious intentions is hard to provide, proof that the writer knowingly published a falsehood was generally accepted as proof of malice, under the assumption that only a malicious person would knowingly publish a falsehood. In the Sullivan case the Supreme Court adopted this term and gave it constitutional significance, at the same time defining it in terms of the proof which had previously been usual. (See Lewis, Anthony (1991). Make No Law: The Sullivan Case and the First Amendment)

Actual malice is different from common law malice which indicates spite or ill-will. It may also differ from "actual malice" as defined in state libel law, as was confirmed in the case of Carol Burnett v. National Enquirer, Inc. (1983). Also see HERBERT v. LANDO, (1979) 441 U.S. 153 (1979)441 U.S. 153 fn 12; "The existence of actual malice may be shown in many ways. As a general rule, any competent evidence, either direct or circumstantial, can be resorted to, and all the relevant circumstances surrounding the transaction may be shown, provided they are not too remote, including threats, prior or subsequent defamations, subsequent statements of the defendant, circumstances indicating the existence of rivalry, ill will, or hostility between the parties, facts tending to show a reckless disregard of the plaintiff's rights..."