Elements of Libel and Slander

Defamation laws protect the reputations of individuals and other entities. For example, they protect businesses from untrue and damaging statements. At the same time, the courts must protect freedom of speech. Libelous statements refer to words that can be seen (typically written and published). Slander occurs when a defamatory statement is spoken or otherwise audible (such as a radio broadcast).

Slander and libel civil lawsuits often involve public figures or public officials. They allow for civil recovery of false statements made about them. However, it is important to strike a balance between:

1. Protecting personal injury to reputation; and
2. Protecting First Amendment rights to free speech that have been guaranteed by the Supreme Court

Elements of Defamation

To prove either type of defamation lawsuit, plaintiffs must usually prove the following elements:

1. The defendant made a false statement of fact concerning the plaintiff;
2. The defendant made the defamatory statement to a third party knowing it was false (or they should have known it was false);
3. The defamatory statement was disseminated through a publication or communication; and
4. The plaintiff's reputation suffered damage or harm

In some cases, the plaintiff has the burden of proof for actual damages, in the form of special damages. Actual damages are damages directly suffered, which can be calculated to a dollar amount of economic loss. Special damages compensate for expenses such as medical injuries from emotional distress. But even if damages are proven, truth is an absolute defense to a defamation case. If the defendant can show that their allegedly defamatory statement is, in fact, a true statement, they win.

Depending on the jurisdiction, some actions that don't quite meet the level of defamation may give rise to a "false light" lawsuit. False light claims are a type of civil invasion of privacy. A difference of this type of claim (cause of action) is that it requires the defendant to put the plaintiff in a false light that is offensive.

In some cases, it requires a showing of actual malice. For example, a defendant may post a falsity on social media with reckless disregard for the truth. In these situations, a plaintiff may be able to obtain punitive damages. These are exemplary damages intended to punish the defendant beyond the plaintiff's regular damages.

Defamatory Statements

Defamation claims require that a defendant knowingly or negligently publish something defamatory about the plaintiff. According to the American Restatement of Torts, a communication may be considered defamatory if, “it tends so to harm the reputation of another as to lower them in the estimation of the community, or to deter third persons from associating with them."

Examples of defamatory statements are virtually limitless, including wrongful statements that:

• Suggest the plaintiff was involved in a serious crime involving moral turpitude or a felony (defamation per se)
• Expose a plaintiff to ridicule
• Reflect negatively on the plaintiff's character, morality, or integrity
• Impair the plaintiff's financial well-being
• Impute that the plaintiff suffers from a physical or mental defect (the defect would cause others to refrain from associating with the plaintiff)

Courts have long struggled with the task of determining a standard for deciding whether a statement is defamatory. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. Generally, courts require a plaintiff to prove that they have been defamed in the eyes of a reasonable person or a defined group in the community. In judicial proceedings, juries usually decide this question for libel lawsuits in court.

Fact vs. Opinion

In general, statements of opinion cannot form the basis of a defamation action. However, if a statement implies defamatory facts about a person's reputation as the basis of the opinion, it could be actionable. Determining whether a statement is a fact or an opinion can be difficult and is often contested in these cases. Often, the outcome of a defamation case hinges on this determination.

Publication Requirement in Libel Cases

A personal injury law requirement in libel cases is that the defendant must have published defamatory information about the plaintiff. "Publication" includes traditional forms, such as books, newspapers, and magazines. It also includes modern social media platforms. Oral remarks are usually considered slander and not libel. However, a streaming audio clip on the internet may be considered a publication.

Meaning of a Communication

In some instances, the context of a statement may determine whether the statement is defamatory. Courts will take into account associated facts and circumstances. Even when two statements are identical in their words, one may be defamatory while the other is not, depending on the context of the statements.

For example, a comedian might be performing a skit. They make a joke to an audience about a person's character. Here, the satirical context might negate the otherwise-defamatory implications. On the other hand, at a dinner party, an off-duty police officer makes a joke about the character of a person they arrested while they were on the job. Given the serious nature of the officer's job, the statement might not come off as a joke. This could be construed as a defamatory statement due to its context.

Whether the police officer is liable will depend on whether the defamatory statement was unprivileged or subject to conditional or qualified privilege.

For instance, statements made in court or in the course of a government official's work may be protected by privilege.

Statement Referring to the Plaintiff

A defamation of character claim must be specific enough that it refers to the plaintiff. The statement does not have to refer to the plaintiff by name, but it could be defamatory if the plaintiff is reasonably identifiable.

In some cases, the writer may have been referring to someone else, and the plaintiff was mistaken about the reference. However, it may still be defamation if a jury reasonably believed the publication was intended to refer to the plaintiff.

Even in fiction, the author is not automatically protected from defamation claims. Publishers who have included disclaimers can still be subjects of libel and defamation claims. For example, when a real-life private individual finds a "fictional" character that is reasonably identifiable as the plaintiff, they may have a defamation claim. A jury might be dissatisfied with a publisher's disclaimer that the characters are fictitious.

Anti-SLAPP Lawsuits

Filing a defamation lawsuit can have consequences. Some libel and slander claims are filed in an attempt to silence critics. However, about half of states have laws against strategic lawsuits against public participation (SLAPP). Anti-SLAPP laws were created to prevent people from unfairly silencing others. This would protect people who are using their First Amendment right to free speech.

In an anti-SLAPP claim, the defendant must demonstrate they are being sued for activity protected by their free speech rights. Usually, this will involve issues of legitimate public concern. An anti-SLAPP claim can strike down the plaintiff's libel or slander claim and may award attorney fees to the defendant.

Learn More About the Elements of Slander and Libel: Call a Lawyer

Just like car accident cases, libel cases and slander claims can be complicated. Whether a claim will succeed depends on the details of the statements made, matters of public concern, and their context.

A personal injury attorney focused on libel action can help you:

• Understand the law in your personal injury case
• Understand whether the elements of libel (or the elements of slander) are apparent
• Understand whether there is an invasion of privacy
• Determine your rights before you find yourself in state court

Learn more today by reaching out to an experienced defamation attorney near you. They are a specific type of injury lawyer who can give you legal advice regarding a personal injury lawsuit for defamation.