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Elements of Libel and Slander

Elements of Libel and Slander

Created by FindLaw's team of legal writers and editors.

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 for United States citizens. 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). These cases often involve public figures or public officials and false statements made about them, but everyone's first amendment rights to free speech must still be protected.

To prove either type of a defamation lawsuit, plaintiffs must 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 publisher acted at least negligently in publishing the communication.

Note: In some cases, the plaintiff must prove special damages.

Depending on the jurisdiction, or if the defamation case goes to the U.S. supreme court, some actions that don't quite rise to the level of defamation may give rise to "false light" lawsuits. The main difference is that a false light claim doesn't require the information to be false but rather highly offensive or misleading, sometimes called actual malice. The following is an overview of the elements of libel and slander.

Defamatory Statements

One essential element in the types of 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 (or "The Restatement"). 

Examples of defamatory statements are virtually limitless, including 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. 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 for libel lawsuits in court.

Courts have struggled to some degree with the treatment of statements of opinions in a libel suit. 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 about a person's reputation as the basis of the opinion, then the statement may be considered a libelous or slanderous statement.

Once the statement is proven to be a statement of fact (or disproven), "absolute defense" is established and the court case will close the defamation suit. Punitive damages may be awarded to the injured party for emotional distress and harm to the plaintiff's reputation.

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 or a post on social media may be considered a publication in this context just the same as an article in The New York Times would be. As 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 defaming 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 if it is a defamation of character. 

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. Freedom of the press only extends as far as there is no malicious intent to a private person or a public person, or else the laws of libel may apply.

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.

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.

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