Libel, Slander, and Defamation Law: The Basics

Defamation is a civil action that covers false statements that cause reputational harm. Libel and slander are two types of defamation. Libel includes written or pictorial defamatory statements while slander includes verbal defamatory statements.

This FindLaw article explores defamation, libel, and slander laws.

Defamation Lawsuits

State defamation laws vary, but some accepted standards exist no matter where you are or who you are suing. Generally, to win a defamation lawsuit, you must prove that:

1. Someone made a statement;

2. The statement was published;

3. The statement caused your injury;

4. The statement was false; and

5. The statement did not fall into a privileged category

These terms and details are further defined below:

The Statement

A "statement" needs to be spoken (slander), written (libel), or otherwise expressed in some manner. Many consider slander less harmful than libel because the spoken word often fades more quickly from memory. These statements are especially damaging to the person's good name if they involve a public or private individual's health, business, criminal propensity, or sexual misconduct. Defamation of character in these particular areas can be actionable as defamation per se.

Publication

For a statement to be published, a third party (someone other than the person making the statement or the subject of the statement) must have seen, heard, or read the defamatory statement. Unlike the traditional meaning of "published," a defamatory statement does not need to be printed. Instead, a statement heard over the television or seen scrawled on someone's door is considered published.

Injury

To succeed in a defamation lawsuit, the plaintiff must show the statement to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. For example, a statement has caused injury if the subject of the statement lost work or money due to the statement.

Falsity

Defamation law considers statements defamatory only if they are, in fact, false. A true statement is not considered defamation in many states but truth is a defense in some states (see below).

Unprivileged

You cannot sue for defamation based on statements considered "privileged." For example, when a witness testifies at trial and makes a false and injurious statement, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged. In some states, privilege is a defense to a defamation claim (more on that below).

Defenses to Defamation

Here are some possible defenses to defamation:

Truth

A statement must be false to be defamatory. Truth is an absolute defense to a defamation claim.

Opinion

Only statements of fact can be defamatory. Statements of opinion are not. For example, saying that Kevin stole money from the collection basket on two occasions is a statement of fact. Saying that Kevin is a "thief" is an opinion, though courts and juries may interpret it differently depending on how they feel a reasonable person might take it. The line between fact and opinion is often blurry and can depend on the circumstances.

Absolute Privilege

Statements made in certain contexts are subject to an "absolute privilege," a complete defense to defamation. In other words, in some situations, you can lie. Examples include statements made by legislators on the floor of the legislature and statements made between spouses.

Qualified Privileges

Some statements are subject to a "qualified privilege," which recognizes that you may have some right to make a false statement in some cases. For example, published reviews containing fair criticism of books or films are subject to a qualified privilege, as are statements made to warn others about potential danger.

Retraction

A retraction is a public and formal withdrawal of a previously made false statement. Although you can still sue the speaker for defamation, the retraction lessens the actual harm done by the false statement and reduces the amount you can recover for the civil wrong.

Damages

Like most personal injury cases, judicial proceedings in defamation lawsuits allow for the recovery of economic and non-economic damages.

If you prove your cause of action for defamation, you may be entitled to recover your actual damages. The amount typically depends on the harm to a person's reputation. Special damages are the amount you can calculate with precision, such as medical bills. Let's say you lost a job because of a false statement of fact. In that case, you may be able to recover lost wages, lost future earning capacity, and other lost economic opportunities.

Depending on the statement, you may be able to recover money for amounts that you cannot calculate with precision. These are called non-economic damages. One typical example would be damages for pain and suffering and emotional distress.

In cases where the speaker acted outrageously, you may be able to recover punitive damages, which punish the speaker for particularly bad behavior.

Social Media and Defamation Law

Social media makes it easier than ever to make a defamatory statement. Social media services like Twitter and Facebook allow you to instantly "publish" a statement that can reach millions of people. Whether it's a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms. You can be sued for any defamatory statements you post online.

Public Officials and Figures

Our government places a high priority on allowing the public to speak their minds about elected officials and other public figures. Compared to private figures, people in the public eye are less protected from defamatory statements. They also face a higher burden when attempting to win a defamation lawsuit.

The Supreme Court has ruled that freedom of speech limits a public official's ability to sue someone for defamation. When someone criticizes an official in a false and damaging way for something relating to their behavior in office, the official must prove the statement was made with "actual malice" and all the other defamation elements.

The U.S. Supreme Court defined "actual malice" in Hustler v. Falwell (1988). In that case, the Court held that the First Amendment of the United States Constitution protected certain statements that would otherwise be defamatory.

This meant that public officials could only win a defamation suit when the statement was published with the actual intent to harm the public figure. Actual malice only occurs when the person making the statement knows it is not true or has a reckless disregard for whether it is true.

Other people in the public eye, such as celebrities, must also prove actual malice to succeed in a defamation claim.

Modern Libel Laws

The landmark Supreme Court decision in New York Times Co. v. Sullivan (1964), recognized that the law of defamation has a constitutional dimension. Under this case and subsequent cases, the Court has balanced individual interests in reputation with the interests of free speech in society. This approach has altered the rules governing libel and slander (written and spoken types of defamation, respectively), especially where printed speech is about a public official or figure, or the communication is about a matter of public interest.

Questions About Defamation Law? Get Legal Help Today

If you have been accused of defamation or someone has defamed you, you'll want to know more about the law and your rights. An experienced lawyer or a law firm can give you legal advice about your potential defamation case.

Contact a local defamation attorney to learn more about how they can help. You have a limited amount of time under state law to bring a defamation claim, depending on the state's statute of limitations, so make sure you do not delay.

Learn more on our state-specific defamation law legal answers page.