Defamation is the communication of a false statement of fact that causes harm to the reputation of an individual or group. Written defamation is known as libel, while verbal defamation is referred to as slander.
Not every rude or offensive statement is treated as defamation. Typical defamation statutes require that a plaintiff prove the following:
The defendant made a defamatory statement. A defamatory statement is a statement of fact which a reasonable person would find harmful to his or her reputation. A defamatory statement may be made verbally, or may be communicated through a writing, photograph or visual representation.
The statement was published to a third party. A statement is "published" when it is shared with at least one other person.
The statement was false. True statements cannot be defamatory.
The plaintiff suffered injury to his or her reputation as a result of the statement. The court must be satisfied that the plaintiff suffered from some form of public hatred, ridicule, contempt or degradation.
Defamation Per Se
Most states classify certain categories of statements as defamation per se. Plaintiffs making defamation claims for these statements are not required to prove that the statements were harmful to the plaintiff's reputation. Defamation per se typically includes:
Statements concerning a plaintiff's trade, business or profession.
Statements indicating that the plaintiff has a "loathsome disease" (i.e. leprosy, sexually transmitted diseases and mental illness).
Statements that the plaintiff is unchaste.
Statements that the plaintiff has been involved in criminal activity.
Public Figures and Matters of Public Concern
The First Amendment of the U.S. Constitution requires that plaintiffs prove an additional element for defamation when the plaintiff is a public figure or when the statement relates to a matter of public concern. Public figures include government officials, those who occupy positions of power and influence, and those who have thrust themselves to the forefront of public controversies.
In such cases, a plaintiff must prove that the defendant made the defamatory statement with "actual malice." A statement is made with actual malice when the speaker knows the statement is false, or acts with reckless disregard for the truth or falsity of the statement. The additional requirement ensures that the fear of litigation does not limit the distribution of important information to the public.
Defenses to Defamation
The following serve as defenses to defamation in most jurisdictions:
Truth. Truth is an absolute defense to defamation. Only false statements may be defamatory.
Opinion. Defamatory statements must be statements of fact. Statements of opinion do not support an action for defamation.
Consent. A statement is not defamatory if the plaintiff consents to the statement's publication.
Privilege. Privilege is a complete bar to a claim of defamation. Statements may be protected by an "absolute" or "qualified" privilege. Statements protected by an absolute privilege include statements made in a professional context by legislators and judicial officers, or statements made by witnesses in court. Qualified privilege defenses are typically available when the statement refers to a matter of public importance or concern. Statements protected by a qualified privilege include statements made to a police officer or to an individual's employer.
A successful plaintiff may recover both compensatory and punitive damages for defamation. Compensatory damages typically include damages for emotional pain and suffering.