A successful defamation case in America requires proof that the offender had committed so called actual malice.
Only a subset of plaintiffs in defamation cases are required to prove "actual malice" (a specialized legal term defined below). The general law in the United States is
"Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official."
"The First Amendment requires that a defamation plaintiff prove actual malice or reckless disregard of the truth when the plaintiff is a public official or public figure. New York Times v. Sullivan, 376 U.S. 254 (1964). This is a much higher burden of proof for a public figure plaintiff. Instead of showing objectively that a "reasonable person" knew or should have known the defamatory statement was false, a public figure plaintiff must prove the intent of the defendant was malicious, or that they acted with reckless disregard for the truth. This allows the defendant to prove its good faith intent and efforts as a defense."
It's a debatable question in this case whether or not FunnyJunk's role in this litigation triggers the requirement to allege "actual malice" (it is certainly not a public official), so maybe FunnyJunk doesn't need to allege "actual malice."
"Actual Malice
"In a legal sense, 'actual malice' has nothing to do with ill will or disliking someone and wishing him harm. Rather, courts have defined 'actual malice' in the defamation context as publishing a statement while either
"knowing that it is false; or
"acting with reckless disregard for the statement's truth or falsity.
"It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication. Unlike the negligence standard discussed later in this section, 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."
