Reputation Management and Defamation Law for High-Profile Individuals in Divorce

Gone are the days when simply getting a divorce could ruin a person’s reputation. Outside of the strictest religious circles, divorce today is viewed as a personal decision on a deeply private matter. Society generally acknowledges that upstanding people get divorced for perfectly valid reasons that do not indicate deep character flaws. No harm, no foul, and no fault. That said, when intimate details of a marriage are made public during divorce, the results can be catastrophic. For example, in 2004, Republican candidate Jack Ryan was viewed as a shoo-in for the U.S. Senate seat from Illinois, until records of his divorce from actress Jeri Ryan became public. The records contained Ms. Ryan’s allegations that her former husband had pressured her to accompany him to sex clubs and other sexually explicit venues in several cities, and that he had repeatedly requested public sexual activity. These revelations did not go over well with the conservative base, clearing the way for the Democratic candidate, Barack Obama. The rest, as they say, is history.

Not everyone has such skeletons dangling in their closets, but, as the English poet Thomas Gray wrote, “If the best man's faults were written on his forehead, he would draw his hat over his eyes.” We zealously guard our reputation for its own sake, but also because the consequences of a sullied reputation can be severe and widespread. In this article, we’ll discuss some of the issues related to defamation during and after divorce, and explain why reputation management is an essential consideration in any divorce proceeding.

Why Reputation Matters More Than Ever

Concerns for reputation are not new. Way back in 62 BC, Julius Caesar famously divorced his wife Pompeia, after he had vociferously defended her against allegations of sexual impropriety. According to Plutarch’s Life of Caesar:

“His statement appeared strange, and the prosecutor therefore asked, ‘Why, then, didst thou divorce thy wife?’ ‘Because,’ said Caesar, ‘I thought my wife ought not even to be under suspicion.’

As William Shakespeare would write in Othello, in roughly 1603 AD:

“Who steals my purse steals trash; …
But he that filches from me my good name
… makes me poor indeed.”

We often think of Cancel Culture as a recent phenomenon. The truth is people have been blackballed due to social opprobrium since the dawn of time. But in previous ages, even the worst malefactors — those tarred and feathered and ridden out of town on a rail — could ride over the hill to the next town, where no one knew them, and begin over. Reinventing oneself was as American as apple pie. But in the digital age, there’s no longer anywhere to run. When you bomb in Bridgeport, you’re canceled everywhere.

Thus, if your reputation suffers, the damage is likely to impact every aspect of your life:

• Professional opportunities — Reputation is the linchpin for career advancement, including recruitment for Board seats, speaking engagements, partnership opportunities, and executive positions.
• Business valuation — Negative publicity can sink a business by alienating consumers and investors. A poor business valuation can also make it harder to obtain lines of credit.
• Custody determinations — Public allegations of poor parenting, substance abuse, or immoral behavior can influence custody decisions (regardless of their veracity). Courts consider the best interests of the child, and reputational damage can create a presumption you’ll find difficult to overcome.
• Future relationships — It’s tough to make friends when you’re radioactive. Whether you’re courting new associates for personal, romantic, or professional reasons, they can easily access negative information on you through online searches.
• Mental health/well-being — The psychological toll of public humiliation cannot be downplayed. Whether you’ve been hurt by an embarrassing but truthful revelation or outright character assassination, you’re in for a period of inordinate stress. When this happens during divorce or shortly afterward, it can impact your ability to make tough decisions.

Anyone going through a high-profile divorce must anticipate the potential for reputational damage and adopt a sound strategy to minimize its occurrence and impact.

The Two Fronts of Reputational Damage in Divorce

Attorneys who represent clients in high-profile divorces must be on guard against two types of incidents that can damage a client’s reputation:

• Scandal — The public revelation of private facts that portray the client in a negative light. The Jack Ryan case cited above is a classic example.
• Defamation — This category covers false statements made verbally (slander) or via media (libel). Under certain circumstances, defamatory statements can be actionable, meaning the victim has the right to sue for damages. A prominent defamation case arose in 2018 in the wake of Johnny Depp’s divorce from Amber Heard. Ms. Heard published an op-ed accusing Mr. Depp of domestic abuse. Mr. Depp sued for defamation, winning a $10 million judgment, but was also found to have defamed Ms. Heard, resulting in a $2 million judgment against him.

Neither situation is good for the client, but scandal is arguably harder to deal with, since efforts to refute truthful claims generally backfire. Denials get you caught in a lie, and attempts to clarify can dig your hole deeper. As political pundits like to say, “If you’re explaining, you’re losing.” Therefore, clients who know that unflattering facts are likely to come to light should advise their attorney, who can take any available steps to protect the client’s privacy.

Since defamation, by definition, is a false statement that is potentially actionable, the client has more options. However, proving a statement is false is not always easy, and attempts to refute a lie keep it in the spotlight. Mere repetition can convince the public that even ludicrous statements are true.

Common Reputational Threats in High-Profile Divorces

Scandalous or defamatory revelations come out in a variety of ways. Attorneys and their clients must be wary of:

• Social media warfare — The parties or their proxies can publish statements, images, or videos containing damaging content.
• Strategic leaks to the media — News outlets are always eager for salacious details in high-profile divorces.
• Public court filings — Divorce filings and supporting documents become public records, which anyone can access. This can include affidavits alleging marital misconduct, hidden assets, addiction, or abuse. Even when the court seals records, items can mysteriously surface.
• Weaponized discovery — Attorneys might seek embarrassing information to press for a settlement.
• Third-party involvement — Family, friends, business associates, and household staff might be drawn into the conflict to share private matters.
• Online harassment — High-profile individuals are often targeted by trolls. This can include digital harassment campaigns that use fake social media accounts to post defamatory content across various platforms.

Due to the wide variety of threats, a comprehensive strategy is necessary to provide full protection.

Prevention: The Prenuptial Approach

Before we get into divorce strategies, it’s worth mentioning how a well-drafted prenuptial agreement might avert scandal altogether. Prenuptial and post-nuptial marriage contracts often address how spouses will conduct divorce proceedings, if necessary. Your prenup should contain:

• Non-disparagement clauses — Agreements not to speak ill of the other should extend beyond the divorce
• Confidentiality provisions — Agreements not to disclose personal and financial matters
• Liquidated damages for breach — These are specific financial penalties for public disparagement or disclosures of confidential information.
• Social media / media restrictions — Subject matter limitations for published content
• United front — Agreements about how the parties will publicly characterize their divorce

None of us approaches marriage with the idea that our beloved might one day drag our name through the mud. But as with life insurance, it’s better to have it and not need it than to need it and not have it.

What Constitutes Defamation in NY

State law, with deference to First Amendment protections clarified by the US Supreme Court, governs defamation. Under New York law, a party alleging defamation must prove four legal elements:

1. A false statement of fact — The truth of a statement is a total defense to defamation. This element exempts opinions, even when they are not objectively reasonable.
2. Publication to a third party — One person cannot defame another in a private communication. Someone else must receive the communication.
3. Fault — A defendant is at fault if they knew the statement was false or were negligent in failing to investigate the veracity of the statement before publishing it. A statement about a public figure generally receives greater protection, so the plaintiff must prove actual malice, meaning knowledge that the statement is false or a reckless disregard for the truth. We discuss the public figure dilemma in greater detail below.
4. Damages — The plaintiff must show that the statement caused actual harm to their reputation. For this reason, obvious jokes are rarely actionable.

The presence of these elements presents grounds for a defamation lawsuit. Whether to pursue such action is often a strategic decision, which we discuss below.

Special Considerations: The Litigation Privilege

At this point, you might ask, “What about false statements made during litigation?” Under New York law, statements made in the course of judicial proceedings are generally protected by an absolute privilege if they are deemed material and pertinent to the litigation. This privilege often extends to:

• Pleadings
• Attorney letters related to litigation
• Settlement communications
• Statements preliminary to litigation, when made in contemplation of a lawsuit

This privilege offers powerful — but not unlimited — protection. Persons can still be liable for defamatory statements wholly unrelated to the litigation, gratuitous republication of privileged statements outside the legal proceeding, or statements that have no genuine connection to the litigation. For example, a party to a divorce can make a defamatory accusation in a filed complaint, but repeating it publicly to the media exposes the party to liability.

The Public Figure Problem

If you're considered a “public figure” under defamation law, you can pretty much resign yourself to the status of punching bag. The seminal Supreme Court case of N.Y. Times Co. v. Sullivan (1964) established the “actual malice” standard for liability in a case of defamation brought by a public figure. This means that the plaintiff must prove the speaker or publisher of the defamatory statement either knew the statement was false or acted with reckless disregard for the truth or falsity of the statement. This is a much higher standard than simple negligence. Supporters of the Sullivan standard hail it as a cornerstone of press freedom, while its critics claim it goes too far and enables sloppy, negligent journalism, in which being first is more important than being correct.

Actual malice is a huge hurdle for defamation plaintiffs. But what can be even more frustrating is being labeled a “public figure” under a rather expansive definition. Importantly, Sullivan addressed published criticism of the official conduct of government officials. The Court emphasized that “debate on public issues should be uninhibited, robust, and wide-open.”

A subsequent case, Curtis Publishing Co. v. Butts (1966), expanded the definition of public figure to include non-governmental individuals who command public attention, influence public affairs, and have greater access to media to rebut accusations. A year later, Associated Press v. Walker reinforced the idea that highly prominent non-officials could qualify as public figures. The Court focused on whether persons had voluntarily assumed public prominence, participated in public controversies, and had the ability to influence events.

What legal scholars refer to as the “modern framework” for “public figures” came out of Gertz v. Robert Welch, Inc. (1974). In this Supreme Court case, the Court held that private individuals deserve greater protection than public figures, because they have less access to the media and are more vulnerable to reputational injury. The Court created two distinct categories of public figures, which are still used today:

• General-purpose public figures — Individuals with pervasive fame, widespread notoriety, or continuous public influence are public figures for all purposes. Examples include major celebrities, nationally known politicians, and famous athletes.
• Limited-purpose public figures — Individuals who voluntarily inject themselves into a particular public controversy to influence its outcome. These become public figures only in relation to that controversy. Included would be political activists, public campaign leaders, or businesspeople prominently participating in public disputes.

Therefore, you can be a private citizen, but still a public figure for purposes of defamation. Your status could depend on the totality of the circumstances.

Anti-SLAPP Considerations

To further protect press freedom, states like New York have adopted Anti-SLAPP laws that limit a person’s ability to sue for defamation on “an issue of public interest.” This means that even if you are not a general-purpose or limited-purpose public figure, you might not have the right to sue for defamation if your divorce case arouses sufficient public interest.

You might think that your divorce is of no public importance. But courts have interpreted Anti-SLAPP law broadly to “mean any subject other than a purely private matter.” The fact that your divorce is being heard in a county court might be enough to trigger Anti-SLAPP protections for someone writing about it.

To overcome the law’s restrictions, you might have to prove the defendant demonstrated actual malice, which, as we’ve said, means they made the statement knowing it was false or with reckless disregard for truth or falsity.

Protective Measures: Steps to Prevent Reputational Damage in Divorce

As with all legal controversies, an ounce of prevention is worth a pound of litigation. An experienced divorce attorney can take important steps to safeguard your reputation, as follows:

• Sealing the court record — As the recent decision in the Denise Richards-Aaron Phypers divorce indicates, courts seem more willing to protect divorce litigants’ privacy with orders to seal records.
• Confidential negotiations — Settlement talks create no public record. A confidentiality agreement with sanctions for violations can keep discussions in check.
• Proactive and preemptive litigation strategies — Build a solid case for refutation before unsavory allegations leak. For example, if you know a coparent is going to challenge your fitness in child custody litigation, you can take decisive steps to counter that tactic by:
  • Documenting your involvement in children's lives (school events, medical appointments, daily care)
  • Engaging a parenting coordinator early to mediate disputes privately
  • Submitting voluntarily to drug/alcohol testing if relevant
  • Commissioning mental health evaluations by reputable professionals
• Social media discipline — If you don’t “publish,” you can’t be accused of defamation. You can also guard against images of you being taken out of context to sully your reputation. Therefore, you should consider a total hiatus from social media. If that’s not feasible, be sure you:
  • Avoid posting about the divorce or your future ex
  • Refrain from responding to your spouse's posts
  • Review your privacy settings to limit who sees your content
  • Avoid content that could be misinterpreted in court
• Controlling the narrative — A skilled attorney with experience in high-profile divorces knows how to manage the media to construct a narrative favorable to you. Let your attorney handle the messaging.

Impulse control is supremely important. You cannot allow yourself to be provoked into a rash statement that might damage your reputation and your case.

Legal Responses to Defamation

Not every instance of defamation calls for a lawsuit. An attorney can often effectively counter defamatory remarks by:

• Cease-and-desist letters — In dealing with the media or harassment by individuals, an attorney can send a letter demanding a stop to objectionable conduct and/or a retraction of defamatory statements.
• Takedown orders — Social media platforms provide remedies for content that violates terms of service and/or community standards, including defamatory posts.
• Temporary restraining orders — Though this does not directly address defamation, a TRO can stop ongoing harassment campaigns.
• Defamation lawsuits — Because litigation is expensive, time-consuming, and invites more publicity, you must treat it as a last resort. A lawsuit might be necessary when:
  • Offenders ignore cease and desist letters
  • You have suffered damages that are quantifiable and substantial, such as a decline in business or career consequences
  • False statements are being repeated and expanded upon
  • You need to correct the public record regarding a false narrative

The choice of the best strategy depends on the totality of the circumstances, especially the actual harm caused by the defamation.

Options for Online Content Removal

As we alluded to above, online platforms have mechanisms to address potentially defamatory content. To have content removed, you could:

• Contact platform administrators (Facebook, X, Google) to report violations of the terms of service.
• Request a takedown order under the Digital Millennium Copyright Act if you own the copyright for content that has been posted without your permission, such as private photographs.
• Use Google's reputation management tools to request the removal of certain search results.
• Engage reputation management firms specializing in suppressing negative search results.
• Create positive content (articles, interviews, professional profiles) to push negative results down in search rankings.

As this issue is becoming more prevalent, more attorneys are contracting with specialists in online content removal.

When to Fight and When to Let Defamation Go

Not every false, injurious statement warrants legal action, and the victim is not always in the best position to know the correct course to take. You should do nothing until you have consulted your attorney. Often, doing nothing is the best response. Generally speaking, you should not engage if:

• The statement is unlikely to be believed or have a lasting impact
• Responding will generate more publicity than the original statement
• The speaker has a limited audience or credibility
• You're nearing a settlement, and escalating could derail negotiations
• Legal action would cost more than the reputational damage

You might consider engaging if:

• False statements are materially harming your career, business, or custody case
• Allegations involve serious moral turpitude (crimes, abuse, fraud)
• The speaker has a significant platform and is actively promoting the statements
• Silence could be interpreted as an admission
• You can clearly prove falsity and demonstrate damages

This is a situation where cool heads must prevail. Initially, a false statement will arouse justifiable anger. But in time, it might not justify a robust response. Here’s where you should trust the counsel you’ve retained.

Working with Your Legal Team

Your divorce attorney might not be a defamation specialist. Therefore, it’s often prudent to engage separate counsel for defamation matters while your divorce attorney handles the matrimonial case. Ethical attorneys would rather admit their limitations than expose their client to jeopardy on an issue they are not ready to handle. Retaining a crisis management or public relations firm can also be helpful in dealing with a troubling public narrative. Above all, you must be transparent with your legal team about potentially damaging facts that they might be compelled to address.

The Necessity of Taking the Long View

Reputational damage during and after divorce can feel catastrophic in the moment. You’re already vulnerable from the divorce itself, and nasty revelations or outright lies can only exacerbate that pain. And while it might not be true that “time heals all wounds,” it’s important to know that life goes on when we give it a chance. A moment in time is but a snapshot; a life fully lived is made up of millions of moments whose richness and beauty can far outweigh the pain of the current crisis.

There are multitudes of famous individuals who have weathered the storm of messy public divorces and rebuilt their reputations. Some reach greater prominence through their continued pursuit of professional excellence; others through philanthropy or community engagement. Many focus on their children and extended family. Sometimes the best strategy is simply to maintain a dignified silence and patiently wait for the news cycle to move on.

Your reputation can take years to build and moments to damage. If you're facing a high-conflict divorce, the attorneys at Bikel Rosenthal & Schanfield can help protect your privacy, your future, and your good name. Call 212.682.6222 or connect online to schedule a confidential consultation.