2023 New Mexico Statutes › Chapter 41 - Torts › Article 7 - Libel and Slander › Section 41-7-1 - [Limitation of tort actions based on single publication or utterance; damages recoverable.]

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one edition of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
History:
1953 Comp., § 40-27-30, enacted by Laws 1955, ch. 50, § 1; 1978 Comp., § 30-34-1, recompiled as 1978 Comp., § 41-7-1.
ANNOTATIONS
Bracketed material.
— The bracketed material was inserted by the compiler and is not part of the law.
Compiler's notes.
— Sections 41-7-1 to 41-7-6 NMSA 1978, formerly 30-34-1 to 30-34-6 NMSA 1978, were recompiled to be included with other tort, rather than criminal, provisions.
Cross references.
— For immunity from liability for employers for statements in references of former employees,
see
50-12-1 NMSA 1978.
Actual injury to reputation is required.
— Actual injury to reputation must be shown as part of a plaintiff's prima facie case in order to establish liability for defamation. Evidence of humiliation and mental anguish, without evidence of actual injury to reputation, is insufficient to establish a cause of action for defamation.
Smith v. Durden
, 2012-NMSC-010, 276 P.3d 943,
rev'g
2010-NMCA-097, 148 N.M. 679, 241 P.3d 1119.
Where defendants published an anonymous letter that accused plaintiff, who was a priest, of several acts of pedophilia and plaintiff was unable to demonstrate actual injury to plaintiff's reputation because plaintiff was not suspended from plaintiff's position nor did plaintiff suffer adverse employment consequences or other related losses from the publication of the letter, plaintiff's claim of defamation was precluded as a matter of law.
Smith v. Durden
, 2012-NMSC-010, 276 P.3d 943,
rev'g
2010-NMCA-097, 148 N.M. 679, 241 P.3d 1119.
Absolute-privilege defense general rule.
— The absolute-privilege defense is available when an alleged defamatory statement is made to achieve the objects of litigation and is reasonably related to the subject matter of the judicial proceeding. As part of the absolute-privilege analysis, the court will consider the extent to which the recipient of the statement had an interest in the judicial proceeding. When the statement precedes litigation of the judicial proceeding, the privilege is available only if the proceeding in question is contemplated in good faith and under serious consideration at the time the statement is made.
Helena Chem. Co. v. Uribe
, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633.
Absolute-privilege defense does not apply to statements to news reporters.
— Statements made to news media recipients who are wholly unrelated to and have no interest in a judicial proceeding are not protected by absolute privilege.
Helena Chem. Co. v. Uribe
, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633.
Where community residents held a public meeting to discuss litigation against plaintiff for a toxic tort and a press conference was held after the toxic tort action was filed; news reporters were invited and attended both the public meeting and the news conference; and an attorney who represented the plaintiffs in the toxic tort action and a plaintiff to the toxic tort action made defamatory statements about plaintiff at the public meeting and at the news conference, the defamatory statements were not entitled to absolute-privilege protection, because the statements were made to news reporters who had been invited to hear the statements but who had no relation to or interest in the judicial proceeding.
Helena Chem. Co. v. Uribe
, 2011-NMCA-060, 149 N.M. 789, 255 P.3d 367, cert. granted, 2011-NMCERT-006, 150 N.M. 764, 266 P.3d 633.
Attorney's statements explaining the allegations in a complaint were absolutely privileged.
— Where defendant attorney and her law firm (defendants) represented a young woman who had worked for the Las Cruces Police Department when she was seventeen years old, and where defendants filed a lawsuit on behalf of the young woman against the City of Las Cruces (City) and individual officers, alleging that a police department detective had raped the young woman while she was at work and that the rape resulted from a sexualized culture that existed within the police department, and where, during the course of litigation, defendants deposed plaintiff, a detective with the Las Cruces Police Department who described sexual harassment that she experienced in the department, and while the lawsuit was still pending defendant attorney agreed to be interviewed by KOB-TV, which broadcast an interview with defendant attorney, during which she reiterated the claims at issue and explained by way of specific, limited examples, the allegations of harassment, objectification, and dehumanization underlying the municipal liability claim, based in part on plaintiff's deposition testimony, and where plaintiff sued defendants for defamation, alleging that defendant attorney made defamatory statements against plaintiff during the television news interview, the district court erred in denying defendants' motion for summary judgment, because statements made by litigants or their attorneys to the press after a lawsuit has been filed are absolutely privileged if the statements are a repetition or an explanation of the allegations in the pleading, and in this case, all of defendant attorney's statements in the interview were limited to reiteration and explanation of the allegations in the complaint.
Chavez-Neal v. Kennedy
, 2021-NMCA-015.
Elements of a defamation claim.
— The general elements of defamation in New Mexico are a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff. An injury specific to the plaintiff's reputation is not a required element.
Smith v. Durden
, 2010-NMCA-097, 148 N.M. 679, 241 P.3d 1119, cert. granted, 2010-NMCERT-010, 149 N.M. 65, 243 P.3d 1147.
Reserve law enforcement officer is a public official for purposes of defamation and false light invasion of privacy claims.
— Where plaintiff, a paid civilian employee and an unpaid reserve police officer of the Albuquerque police department, brought defamation and false light invasion of privacy claims against publishing company and reporter concerning a number of statements contained within articles written by the reporter and published in the Albuquerque journal (journal), the district court did not err in finding that plaintiff, as an unpaid reserve police officer, was a public official and that the "actual malice" standard applied to his claims, because plaintiff, a commissioned, sworn law enforcement officer who wore a department-issued uniform, carried a detective badge and weapon when performing his reserve officer duties, and performed undercover detective work, acted under the color of authority of a sworn police officer, and his use of that authority is what defendants called into question in the series of articles they published in the journal.
Young v. Wilham
, 2017-NMCA-087, cert. denied.
Distinguishing between fact and opinion in defamation claim.
— New Mexico courts, in a defamation claim, must consider the entirety of the publication, the extent that the truth or falsity may be determined without resort to speculation, and whether reasonably prudent persons reading the publication would consider the statement as an expression of opinion or a false statement of fact, and if the material as a whole contains full disclosure of the facts upon which the publisher's opinion is based and which permits the reader to reach his own opinion, the court in most instances will be required to hold that it is a statement of opinion, and absolutely privileged.
Young v. Wilham
, 2017-NMCA-087, cert. denied.
Plaintiff failed to state a claim for defamation where published material was opinion and thus protected speech.
— Where plaintiff, a paid civilian employee and an unpaid reserve police officer of the Albuquerque police department, brought defamation and false light invasion of privacy claims against publishing company and reporter concerning a number of statements contained within articles written by the reporter and published in the Albuquerque journal, the district court did not err in finding as a matter of law that plaintiff failed to state a claim for defamation or false light invasion of privacy based on defendants' published use of the term "wannabe cop", because considering the context of the publications as a whole and defendants' disclosure of the undisputed facts on which its conclusion was based, such as the fact that state law does not allow reserve officers to make arrests but that court records indicated that plaintiff had made numerous arrests during his many years as a reserve officer, defendants' labeling of plaintiff as a "wannabe cop" was pure opinion and thus protected by the first amendment.
Young v. Wilham
, 2017-NMCA-087, cert. denied.
Summary judgment appropriate in defamation case where plaintiff, as a public official, failed to proffer a scintilla of evidence of actual malice.
— Where plaintiff, a paid civilian employee and an unpaid reserve police officer of the Albuquerque police department (APD), brought defamation and false light invasion of privacy claims against publishing company and reporter concerning a number of statements contained within articles written by the reporter and published in the Albuquerque journal that plaintiff collected overtime pay for police-related work when state law and city ordinance prohibited reserve officers from being paid for such work, the district court did not err in granting defendants' motion for summary judgment where defendants presented time sheets and court records that showed plaintiff had claimed overtime for "investigation" work, made arrests during those periods as evidenced by uniform incident reports, described himself in those reports as working "under cover with the vice unit," named himself as the "reporting officer," and identified his rank as detective, all at times that records reflect he was being compensated as an employee of APD, and where plaintiff, as a public official, failed to present evidence showing that a false publication was made with a high degree of awareness of probable falsity or sufficient evidence to permit the conclusion that defendants in fact entertained serious doubts as to the truth of the publication.
Young v. Wilham
, 2017-NMCA-087, cert. denied.
Humiliation and mental anguish.
— Evidence of humiliation and mental anguish are actual injuries that are compensable if proved by a plaintiff even when that plaintiff does not prove harm to plaintiff's reputation.
Smith v. Durden
, 2010-NMCA-097, 148 N.M. 679, 241 P.3d 1119, cert. granted, 2010-NMCERT-010, 149 N.M. 65, 243 P.3d 1147.
The single publication rule applies to manufactured goods.
— Similar to traditional forms of mass media, manufactured goods can be mass-produced for public consumption and retailers may sell them to consumers across broad geographic areas, and these goods may be bought and viewed by countless individuals for an indefinite amount of time after they were originally manufactured and sold to the public. Absent the single publication rule, the sellers of these goods would be subject to a multiplicity of claims leading to potential harassment, excessive liability, and draining of judicial resources.
Vigil v. Taintor
, 2020-NMCA-037, cert. denied.
Statute of limitations of tort action based on a single publication.
— Multiple disseminations of the same content give rise to only one cause of action, and the three-year statute of limitations runs from the point at which the original dissemination occurred.
Vigil v. Taintor
, 2020-NMCA-037, cert. denied.
Where in 2010, defendants began manufacturing and selling several products, including magnets, flasks, and cards, bearing plaintiff's image with the caption, "I'm going to be the most popular girl in rehab!", and where in 2014, plaintiff filed an action for defamation, false light, and appropriation, the district court did not err in granting defendants' motion for summary judgment, because plaintiff's claims for defamation, false light, and appropriation were barred by the three-year statute of limitations under the single publication rule.
Vigil v. Taintor
, 2020-NMCA-037, cert. denied.
Republication of internet publications.
— Where, in 2003, the defendant posted comments on the defendant's website which stated that plaintiff knowingly solicited the defendant to commit a federal crime by offering the defendant the job of breaking into a news website that had written something unflattering about the plaintiff and in 2006, the defendant posted comments on the defendant's website which recapped the 2003 incident; added that even after the plaintiff was informed that the plaintiff was requesting a criminal act, the plaintiff nevertheless offered to pay for its performance; stated that the defendant's only recourse against the plaintiff for the unlawful request was to make fun of the plaintiff on the defendant's website; contained the content of an email exchange between the defendant and a staff member of the student newspaper at the University of Florida in which the staff member stated details of a dispute between the plaintiff and the newspaper related to whether a play by the plaintiff featured dancing penises and condoms; and stated that the plaintiff had been on "America's Funniest Home Videos" and that the plaintiff is proud to be know as the Wedgie Woman, the 2006 website posting could be viewed as a republication of the 2003 website posting which gave rise to a new cause of action for defamation that restarted the statute of limitations because the 2006 website posting contained substantive additions to the 2003 website posting and substantially altered the content of the 2003 website posting.
Woodhull v. Meinel
, 2009-NMCA-015, 145 N.M. 533, 202 P.3d 126, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
Communications Decency Act.
— Where the defendant's website was housed on a third-party's server which made the defendant's website accessible on the Internet to multiple users, the defendant's was a user of an interactive computer service; the defendant made defamatory claims against the plaintiff in the defendant's website and used specific defamatory words in reference to the plaintiff, the defendant was the publisher or speaker of information; and instead of merely editing an email from a third party that contained defamatory information, the defendant requested potentially defamatory material for the defendant's own stated purpose of making fun of the plaintiff and incorporated the email into an overall larger posting containing the defendant's own thoughts and contributions, the defendant was an original content provider and the defendant was not immune from liability under the Communications Decency Act of 1966, 47 U.S.C. §230 (1998).
Woodhull v. Meinel
, 2009-NMCA-015, 145 N.M. 533, 202 P.3d 126, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
Law reviews.
— For comment on
Blount v. T.D. Publishing Corp.
, 77 N.M. 384, 423 P.2d 421 (1966), see 8 Nat. Resources J. 348 (1968).
For article, "Defamation in New Mexico," see 14 N.M.L. Rev. 321 (1984).
For comment, "Survey of New Mexico Law: Torts," see 15 N.M.L. Rev. 363 (1985).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
50 Am. Jur. 2d Libel and Slander § 264 et seq.
Conflict of laws with respect to the "single publication" rule as to defamation, invasion of privacy or similar tort, 58 A.L.R.2d 650.
Liability of telegraph or telephone company for transmitting or permitting transmission of libelous or slanderous messages, 91 A.L.R.3d 1015.
Libel by newspaper headlines, 95 A.L.R.3d 660.
Liability for defamation for criticizing restaurant's food, 96 A.L.R.3d 609.
Defamation: publication of "letter to editor" in newspaper as actionable, 99 A.L.R.3d 573.
Labor union's liability to member for defamation, 100 A.L.R.3d 546.
What constitutes special damages in action for slander of title, 4 A.L.R.4th 532.
Allowance of punitive damages in action for slander of title or disparagement of property, 7 A.L.R.4th 1219.
State constitutional protection of allegedly defamatory statements regarding private individual, 33 A.L.R.4th 212.
Libel and slander: privileged nature of statements or utterances by members of governing body of public institution of higher learning in course of official proceedings, 33 A.L.R.4th 632.
Criticism or disparagement of character, competence, or conduct of candidate for office as defamation, 37 A.L.R.4th 1088.
Criticism or disparagement of physician's or dentist's character, competence, or conduct as defamation, 38 A.L.R.4th 836.
Defamation of psychiatrist, psychologist, or counselor, 38 A.L.R.4th 874.
Defamation: application of
New York Times
and related standards to nonmedia defendants, 38 A.L.R.4th 1114.
What constitutes "single publication" within meaning of single publication rule affecting action for libel and slander, violation of privacy, or similar torts, 41 A.L.R.4th 541.
Defamation: nature and extent of privilege accorded public statements, relating to subject of legislative business or concern, made by member of state or local legislature or council outside of formal proceedings, 41 A.L.R.4th 1116.
Defamation action as surviving plaintiff's death, under statute not specifically covering action, 42 A.L.R.4th 272.
Actionable nature of advertising impugning quality or worth of merchandise or products, 42 A.L.R.4th 318.
Criticism or disparagement of attorney's character, competence, or conduct as defamation, 46 A.L.R.4th 326.
Libel or slander: defamation by gestures or acts, 46 A.L.R.4th 403.
Defamation: publication by intracorporate communication of employee's evaluation, 47 A.L.R.4th 674.
Defamation: privilege attaching to news report of criminal activities based on information supplied by public safety officers - modern status, 47 A.L.R.4th 718.
Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 A.L.R.4th 668.
Excessiveness or inadequacy of compensatory damages for defamation, 49 A.L.R.4th 1158.
Liability of better business bureau or similar organization in tort, 50 A.L.R.4th 745.
Defamation: who is "libel-proof", 50 A.L.R.4th 1257.
Name appropriation by employer or former employer, 52 A.L.R.4th 156.
Libel and slander: defamation by cartoon, 52 A.L.R.4th 424.
Libel and slander: defamation by photograph, 52 A.L.R.4th 488.
Defamation of class or group as actionable by individual member, 52 A.L.R.4th 618.
Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.
Credit card issuer's liability, under state laws, for wrongful billing, cancellation, dishonor, or disclosure, 53 A.L.R.4th 231.
Libel and slander: defamation by question, 53 A.L.R.4th 450.
Libel and slander: sufficiency of identification of allegedly defamed party, 54 A.L.R.4th 746.
Defamation of professional athlete or sports figure, 54 A.L.R.4th 869.
False light invasion of privacy - Cognizability and elements, 57 A.L.R.4th 22.
False light invasion of privacy - Defenses and remedies, 57 A.L.R.4th 244.
Imputation of criminal, abnormal, or otherwise offensive sexual attitude or behavior as defamation - post-
New York Times
cases, 57 A.L.R.4th 404.
Libel or slander: defamation by statement made in jest, 57 A.L.R.4th 520.
False light invasion of privacy - accusation or innuendo as to criminal acts, 58 A.L.R.4th 902.
False light invasion of privacy - neutral or laudatory depiction of subject, 59 A.L.R.4th 502.
False light invasion of privacy - disparaging but noncriminal depiction, 60 A.L.R.4th 51.
Imputation of allegedly objectionable political or social beliefs or principles as defamation, 62 A.L.R.4th 314.
Publication of allegedly defamatory matter by plaintiff ("self-publication") as sufficient to support defamation action, 62 A.L.R.4th 616.
Defamation: designation as scab, 65 A.L.R.4th 1000.
Intrusion by news-gathering entity as invasion of right of privacy, 69 A.L.R.4th 1059.
In personam jurisdiction, in libel and slander action, over nonresident who mailed allegedly defamatory letter from outside state, 83 A.L.R.4th 1006.
Who is "public official" for purposes of defamation action, 44 A.L.R.5th 193.
Libel and slander: charging one with breach or nonperformance of contract, 45 A.L.R.5th 739.
Defamation: publication of letter to editor in newspaper as actionable, 54 A.L.R.5th 443.
Liability for statement or publication charging plaintiff with killing of, cruelty to, or inhumane treatment of animals, 69 A.L.R.5th 645.
Liability of internet service provider for internet or e-mail defamation, 84 A.L.R.5th 169.
Libel and slander: Statements regarding labor relations or disputes, 94 A.L.R.5th 149.
Free exercise of religion clause of First Amendment as defense to tort liability, 93 A.L.R. Fed. 754.
First Amendment guaranty of freedom of speech or press as defense to liability stemming from speech allegedly causing bodily injury, 94 A.L.R. Fed. 26.