Defamation, Libel and Slander

Not all torts (civil wrongs) result in bodily harm. Some cause harm to a person's reputation instead.

Defamation is the general tort that encompasses statements that damage a person's reputation. There are different forms of defamation, including libel and slander.

The difference between libel and slander is simply whether the statements are written or spoken. If they are written, they are considered libel. If they are spoken, they are considered slander. If a person suffers injury to their reputation as a result of another person's statements, they can sue through a defamation claim.

Continue reading for an overview of libel and slander and how both relate to defamation.

The Basics of Defamation Law

The government can't punish a person for defamation because it's not a criminal offense. Defamation is a tort cause of action, however. This means a person can file a civil lawsuit against someone if they suffer injury because of that person's defamatory statements.

A defamation suit can be a tricky area of law. The Supreme Court has different standards for what is considered defamation of character and what is protected free speech. There is a fine line between First Amendment freedom of speech and the right of a person to protect their reputation and good name.

Defamatory statements fall into two categories:

• Libel, when it's written, and
• Slander, when it's spoken (oral statements)

Regardless of which form defamatory statements take, a person must usually show the following to be successful in any type of defamation lawsuit:

1. A person made a false statement of fact,
2. The statement was published,
3. The statement caused injury; and
4. The statement didn't fall into a privileged category

For example, someone might use social media to lie about another person's trustworthiness intentionally. A reasonable person will believe those lies about the targeted individual. The injured person may have actual damages in the form of lost income. They may also have special damages such as medical bills for their emotional distress. If the defendant acted with malice or reckless disregard, the injured party may even ask for punitive damages to punish them for their unfair behavior.

These are the general elements of defamation. However, it's important to check exactly what constitutes defamation in your state. For instance, the legal terms for defamation in New York will differ from those in California.

Defenses to Defamation

Whether it's libel or slander, there are a variety of defenses available to a defendant in a defamation case. One absolute defense to defamation is consent. If the plaintiff consented to the publication of defamatory information about them, the consent is a complete defense.

Another defense to libel or slander is truth. Traditionally, it was presumed that a statement was false once the plaintiff proved it was defamatory. Under modern law, if a plaintiff is a public figure or public official, they must prove the statement is false in order to recover monetary damages. This is known as the “actual malice" standard, which requires that the plaintiff show either:

• That the defendant knew the statement was false; or
• That the defendant acted with reckless disregard as to its falsehood

Some states have extended this requirement to any plaintiff, even if they are a private individual (private figure). If proving falsity is not a requirement, truth can be an affirmative defense in a defamation case.

Finally, privilege can also serve as a defense in a defamation case. There are absolute and qualified privileges. Absolute privilege means that the nature of the statement or the intent of the person making the statement doesn't matter. Regardless of this, the privilege always applies.

Examples of circumstances where there is absolute privilege are:

• Judicial and legislative proceedings
• Publications required by law
• Some executive statements and publications
• Publications between spouses

Qualified privilege, on the other hand, is conditional. It depends on the circumstance under which the statement was made. For example, statements made for the protection of the publisher's interests or to ensure a family member's well-being can be protected by conditional/qualified privilege. To succeed in a qualified privilege defense, the defendant must prove that they meet the conditions established for the privilege.

Hiring a Lawyer

Defamation claims can be made in personal injury cases. If you or someone close to you has been the victim of defamatory statements, you may want to contact a local personal injury attorney. Personal injury lawyers can provide legal advice regarding defamation, libel, and slander.

It's important to remember that each state has its own statute of limitations for filing a defamation action. For this reason, and others as well, it's in your best interest to contact an attorney sooner rather than later.