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Elements of Libel and Slander

Defamation laws protect the reputations of individuals and other entities (such as businesses) from untrue and damaging statements. Libel refers to statements 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). To prove either type of defamation, plaintiffs must prove the following four elements:  

  1. First, the plaintiff must prove that the defendant made a false and defamatory statement concerning the plaintiff.
  2. Second, the plaintiff must prove that the defendant made an unprivileged publication to a third party.
  3. Third, the plaintiff must prove that the publisher acted at least negligently in publishing the communication.
  4. Fourth, in some cases, the plaintiff must prove special damages.

Defamatory Statements

One essential element in any defamation action is that the defendant 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 (or "The Restatement"). Examples of defamatory statements are virtually limitless and may include any of the following:

  • A communication that suggests the plaintiff was involved in a serious crime involving moral turpitude or a felony
  • A communication that exposes a plaintiff to ridicule 
  • A communication that reflects negatively on the plaintiff's character, morality, or integrity
  • A communication that impairs the plaintiff's financial well-being
  • A communication that suggests 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. Many statements may be viewed as defamatory by some individuals, but the same statement may not be viewed as defamatory by others. But generally, courts require a plaintiff to prove that he or she has been defamed in the eyes of the community or within a defined group within the community. Juries usually decide this question.

Courts have struggled to some degree with the treatment of statements of opinions. In common law, statements of opinion could form the basis of a defamation action similar to a statement of pure fact. Generally, if a statement implies defamatory facts as the basis of the opinion, then the statement may be considered libel or slander.

Publication Requirement

Another requirement in libel and slander cases is that the defendant must have published defamatory information about the plaintiff. "Publication" certainly includes traditional forms, such as books, newspapers, and magazines, but it also includes oral remarks. A streaming audio clip on the Internet may be considered a publication in this context. So long as the person to whom a statement has been communicated can understand the meaning of the statement, courts will generally find that the statement has been published.

Meaning of a Communication

In some instances, the context of a statement may determine whether the statement is defamatory. The Restatement provides as follows: "The meaning of a communication is that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express." 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.

Reference to the Plaintiff

In a defamation action, the recipient of a communication must understand that the defendant intended to refer to the plaintiff in the communication. Even where the recipient mistakenly believes that a communication refers to the plaintiff, this belief, so long as it is reasonable, is sufficient. It is not necessary that the communication refer to the plaintiff by name. A defendant may publish defamatory material in the form of a story or novel that apparently refers only to fictitious characters, where a reasonable person would understand that a particular character actually refers to the plaintiff. This is true even if the author states that he or she intends for the work to be fictional.

In some circumstances, an author who publishes defamatory matter about a group or class of persons may be liable to an individual member of the group or class. This may occur when: (1) the communication refers to a group or class so small that a reader or listener can reasonably understand that the matter refers to the plaintiff; and (2) the reader or listener can reasonably conclude that the communication refers to the individual based on the circumstances of the publication.

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