Defamation is a civil wrong, like other personal injuries, consisting of statements that injure someone else’s reputation. When the statements are written, they are considered “libel,” while spoken defamation is “slander.” A person who is defamed can sue the person who said or wrote the defamatory statements. However, in general, defamation law is designed with First Amendment rights and the importance of free speech and political or social disagreement in mind. Not every insult or false statement is actionable.
Libel vs. Slander
Libel = written defamatory statements Slander = spoken defamatory statements
Each state has its own defamation laws. In general, a plaintiff suing for defamation will have to show the statement was published, false, harmful to him or her, and not privileged. “Publication” can mean that words were spoken to another person, written words were transmitted to someone else, or that pictures or gestures were shared with another person. A private entry in a journal is not considered published.
The statement must be false to be considered defamation. Truth is a sound defense to defamation. An unflattering opinion will not be considered defamation because it is not true or false from an objective standpoint. Thus, for example, an opinion on an online review site that a restaurant’s food is “boring” or “pedestrian” without any false statements of fact to support it is not defamation. However, if the writer of the review lied in saying that there were bits of glass in her food, the review would be actionable as defamation.
The statement must cause actual harm, not just hurt feelings. If you are suing for defamation, you will have to be prepared to show how the defamatory statement hurt your reputation. For example, someone who loses a job because of false statements about his or her experience meets this element. Similarly, if your wife files for a divorce and your children shun you because another person falsely claims to have had an affair with you, these are injuries caused by a false statement.
There are limited circumstances in which you cannot prevail in a defamation lawsuit even though the defendant has made a false statement that damaged you. For example, lawmakers are not liable when they make false statements in the legislative chamber. Similarly, a witness who perjures him or herself and hurts your reputation cannot be sued for defamation, although he or she can be criminally prosecuted for perjury.
Liability for Defamation
A defendant may be liable for defamation if:
1Their statement was published (oral or written)
2Their statement was actually false
3Their statement caused real harm
4Their statement was not privileged (does not fall under an exception)
In general, you are more restricted in your ability to bring a defamation suit if you are a public figure, such as a lawmaker, a politician, or a movie star. If you are an influential public figure about whom a damaging statement was made, you must prove not only the above elements of defamation, but also that the defendant—the person who made the defamatory statements—acted with actual malice.
If you have criticized a public figure or celebrity, either in a blog or in a public setting, you may be served with a cease and desist letter or other threat of litigation. You may be wondering whether you can be held liable for any damages as a result of your statements. The public figure will have to prove actual malice to hold you liable. This means that you published a statement knowing it was a false statement or that you acted with reckless disregard for the statement’s truth or falsity.
Courts considering whether you had actual malice focus on your state of mind when you published the defamatory statement. It does not matter what a reasonable person would have published, but rather whether you knew the information was false or had serious doubts about whether what you were saying was true. This is a difficult standard for any plaintiff to meet. You should bear in mind that private individuals never need to prove a defendant’s actual malice to prevail in a lawsuit.