Defamation Law: The Basics

There's always a delicate balance between one person's right to freedom of speech and another's right to protect their good name. It is often difficult to know which personal remarks are proper and which run afoul of defamation law.

The term "defamation" is an all-encompassing term that covers any statement that hurts someone's reputation. If the statement is made in writing and published, the defamation is called "libel." If the hurtful statement is spoken, the statement is "slander." Defamation is considered to be a civil wrong, or a tort. A person that has suffered a defamatory statement may sue the person that made the statement under defamation law.

Defamation law walks a fine line between the right to freedom of speech and the right of a person to avoid defamation. On one hand, people should be free to talk about their experiences in a truthful manner without fear of a lawsuit if they say something mean, but true, about someone else. On the other hand, people have a right to not have false statements made that will damage their reputation.

Elements of a Defamation Lawsuit

Defamation law changes as you cross state borders, but there are some accepted standards that make laws similar no matter where you are. Generally in order to win your lawsuit, you must show that:

  1.   Someone made a statement;
  2.  The statement was published;
  3.  The statement caused you injury;
  4.  The statement was false; and
  5.  The statement did not fall into a privileged category.

The Statement -- A "statement" needs to be spoken, written, or otherwise expressed in some manner. Because the spoken word often fades more quickly from memory, slander is often considered less harmful than libel.

Publication -- For a statement to be published, a third party (someone other than the person making the statement or the subject of the statement) must have seen, heard or read the defamatory statement. Unlike the traditional meaning of the word "published," a defamatory statement does not need to be printed. Rather, a statement heard over the television or seen scrawled on someone's door is considered to be published.

Injury -- To succeed in a defamation lawsuit, the statement must be shown to have caused injury to the subject of the statement. This means that the statement must have hurt the reputation of the subject of the statement. For example, a statement has caused injury if the subject of the statement lost work as a result of the statement.

Falsity -- Defamation law will only consider statements defamatory if they are, in fact, false. A true statement is not considered defamation. Additionally, because of their nature, statements of opinion are not considered false because they are subjective to the speaker.

Unprivileged -- Lastly, in order for a statement to be defamatory, it must be unprivileged. You cannot sue for defamation in certain instances when a statement is considered privileged. For example, when a witness testifies at trial and makes a statement that is both false and injurious, the witness will be immune to a lawsuit for defamation because the act of testifying at trial is privileged.

Social Media and Defamation

Due to social media, it's now easier than ever to make a defamatory statement. That's because social media services like Twitter and Facebook allow you to instantly "publish" a statement that can reach millions of people. Whether it's a disparaging blog post, Facebook status update, or YouTube video, online defamation is treated the same way as more traditional forms, meaning that you can be sued for any defamatory statements you post online.

Higher Burdens for Defamation -- Public Officials and Figures

Our government places a high priority on the public being allowed to speak their mind about elected officials as well as other public figures. People in the public eye get less protection from defamatory statements and face a higher burden when attempting to win a defamation lawsuit.

When an official is criticized in a false and injurious way for something that relates to their behavior in office, the official must prove all of the above elements associated with normal defamation, and must also show that the statement was made with "actual malice."

"Actual malice" was defined in a Supreme Court case decided in 1988, Hustler v. Falwell. In that case, the court held that certain statements that would otherwise be defamatory were protected by the First Amendment of the United States Constitution. This meant that public officials could only win a defamation suit when the statement that was made wasn't an honest mistake and was in fact published with the actual intent to harm the public figure. Actual malice only occurs when the person making the statement knew the statement was not true at the time the statement was made, or had reckless disregard for whether it was true or not.

For other people that are in the public eye, such as celebrities, they too must prove that the defamatory statements were made with actual malice.

Get an Initial Case Assessment

If you have been accused of defamation, or someone has defamed you, you'll want to know more about the law and your rights. A lawyer can help examine the specifics of your situation and the law in your jurisdiction to determine the strength of your claim. Contact a local defamation attorney to learn more about how they can help.

Next Steps

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