Defamation is intentional publication to a third party of a false statement about someone that harms that published-about person’s reputation. Therefore, defamation law protects individuals and businesses from people publishing false statements about them to third parties. In legal terms, published means made known to a group or community. It can mean putting out a newspaper or just saying something to another person about a third party.
There are different types of defamation: libel and slander. Libel is a written lie. Slander is a spoken lie. Also, there is defamation per se, which is a statement that is so damaging that it is automatically considered defamatory, so the plaintiff does not have to prove damages. Examples of defamation per se include stating that a person has committed serious crimes such as rape or robbery, has a "loathsome" infectious disease, took part in sexual misconduct, or behaved in a way that does not measure up to the standards of their profession.
For either libel or slander, four elements need to be proved:
- The defendant made a false statement about the plaintiff.
- The defendant made the false statement to a third party.
- The publisher acted at least negligently in publishing the communication.
- The plaintiff suffered damages or some harm.
The first element is that a false statement must be made. It is the burden of the plaintiff to show that statement was false. A statement of opinion is not false for the sake of proving defamation. For example, if Alan says Brett is a "jerk," then that is an opinion and cannot be defamation. If Alan says Brett stole $20,000, then that is a statement presented as fact, and it can be the basis of a defamation claim.
Second, the statement must be made to a third party. If the defendant only says the statement to the plaintiff himself or herself, then the action is not defamation because the defendant has not damaged the plaintiff's reputation to anyone else.
Third, the defendant must be negligent in making the statement. This means they must have at least some reason to know the statement might be false.
And finally, the plaintiff must prove that some damage or harm has been caused by the defamation. Damages will not be presumed by a court just because a defaming statement was made. For example, a plaintiff must show the statement had an effect that has caused them an actual loss, such as that the statement caused someone to break a contract with them resulting in the loss of money.
If the plaintiff is a public figure, such as a politician, the plaintiff must prove that the defendant acted with actual malice. This is because there is an interest in the free exchange of opinions and information on public figures in order to ensure a check on their behavior. The Supreme Court has ruled that actual malice means either making a statement that the plaintiff knows is false or showing "reckless disregard for the truth."
The defenses against a claim of defamation are as follows:
1. Opinion statements.
2. True statements. Truth is an absolute defense, which means that if the statement is demonstrably true, then it cannot be defamation no matter what the circumstances are.
3. No injury—in other words, the plaintiff cannot prove any injury or damages. Courts consider a few plaintiffs to be libel-proof. Their reputations are so damaged that they no longer have good names to protect and can collect little or nothing in damages.
4. Privilege. Some statements are protected by privilege.
5. Consent. The subject of the defamation consented to the publication of the statement.
Libel and Slander
|Elements and Defenses||Libel||Slander|
|What form was the false statement in?||Written||Spoken|
|Must there be a false statement?||Yes||Yes|
|Must the false statement be published to a third party?||Yes||Yes|
|Must the defendant be found negligent?||Yes||Yes||What defenses are available?||Opinion, truth, no damage, privilege, consent, lack of malice regarding public figures||Opinion, truth, no damage, privilege, consent, lack of malice regarding public figures|