Elements of Libel and Slander

Defamation laws protect the reputations of individuals and other entities (such as 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), while slander occurs when a defamatory statement is spoken or otherwise audible (such as a radio broadcast).

Slander and libel cases often involve public figures or public officials and false statements made about them. However, it is important to strike a balance between protecting one's reputation and protecting First Amendment rights to free speech.

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

1. The defendant made a false and defamatory statement 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); and
3. The defendant made the defamatory statement disseminated through a publication or communication and the plaintiff's reputation suffered damage or harm.

Note: In some cases, the plaintiff must prove special damages. In addition, truth is an absolute defense to a defamation case. If the defendant can show that their allegedly defamatory statement is in fact true, 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 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.

The following is an overview of the elements of libel and slander.

Defamatory Statements

One essential element in defamation claims is that the defendant knowingly or negligently published something defamatory about the plaintiff. A communication may be considered defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him," according to the American Restatement of Torts.

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
• Expose a plaintiff to ridicule
• Reflect negatively on the plaintiff's character, morality, or integrity
• Impair the plaintiff's financial well-being
• Suggest that the plaintiff suffers from a physical or mental defect that 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 or has reckless disregard. 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 the community or within a defined group in the community. 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, then the statement may be considered a libelous or slanderous statement. 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 requirement in libel cases is that the defendant must have published defamatory information about the plaintiff. "Publication" certainly includes traditional forms, such as books, newspapers, and magazines. Though oral remarks are usually considered slander and not libel, a streaming audio clip (of an oral remark) on the internet may be considered a publication in this context just the same as an article in The New York Times would be.

Meaning of a Communication

In some instances, the context of a statement may determine whether the statement is defamatory. Courts generally will take into account associated facts and circumstances in determining the meaning of the statement. So even where 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, if a comedian makes a joke to an audience about a person's character, 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.

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 that 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 that the characters are fictitious can still be subjects of libel and defamation claims when a real-life person finds a "fictional" character that is reasonably identifiable as the plaintiff.

Anti-SLAPP Lawsuits

Filing a defamation lawsuit can have consequences. Some libel and slander claims are filed in an attempt to silence critics. However, anti-SLAPP laws were created to prevent people from silencing people who are using their First Amendment right of free speech.

About half of states have laws against strategic lawsuits against public participation (SLAPP). In an anti-SLAPP claim, the defendant must demonstrate they are being sued for activity protected by their free speech rights about issues of 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

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 legal professional focused on libel action can help you understand the law, whether the elements of libel (or the elements of slander) are apparent, whether there is an invasion of privacy, and help determine your rights before you find yourself in state court.

Learn more today by reaching out to an experienced defamation attorney near you.