LIBEL, SLANDER & DEFAMATIONThere’s an old story in political circles that may or may not be an urban legend, but it goes something like this: Two candidates are running for the same political office in a district with traditionally conservative voters. The race remains tight until candidate X starts to tell large crowds, “I will have you know that Candidate Y regularly engages in nepotism with his brother, and that his sister is a well known thespian!”

After the speech, Y plunges in the polls and X goes on to win the election. Y sues X for defamation, but the judge throws out the case because he determines that both claims are in fact true and that X can’t be held responsible for people misunderstanding what the words in question actually referred to.

This story is a humorous but telling example of the law of defamation. But just what is “Defamation” really?

Simply put, “Defamation” is a false statement that is told about another person that harms that person’s reputation in the social or business community. That’s the simple definition, but to be held legally liable for defamation requires specific elements to be proven in court. Practically speaking, if anyone could be successfully sued just because they had some false and embarrassing statements said about them, then many forms of media and political campaigning would have been sued out of existence some time ago. Courts require that you show a little bit more than what is contained in the simple definition. But before we get to just what that is, let’s back up and start with some legal definitions.

“Defamation” is a broad phrase that describes both “Libel” and “Slander” – two traditional causes of action that people sue under. Although the words “libel”, “slander” and “defamation” are often used interchangeably in common usage, “libel” specifically refers to defamation that is printed or written, while “slander” usually refers to defamation that is only spoken between people.

This may seem like a mere technicality (and it is), but it is important to keep in mind that slander is often more difficult to prove since many times there is no recording or other objective record of what was actually said.

So now let’s take a look at the elements that are traditionally required in order to prove a claim for defamation:

1. Publication – The statement in question must be “published”, simply meaning in this context that it must be communicated in some form to a 3rd party. If you were to say to yourself that “X is a thief who deliberately spreads herpes to every woman he meets”, that obviously doesn’t count if you know nobody else could hear you since you only said it to yourself. It also doesn’t count if you said it only to X, even if it is false, since the statement is about him and the law expects him to be a big boy and tolerate such antics. But if you were to say that statement to anyone else (in whatever form), then you have “published” it for purposes of defamation law.

2. Specific Identification – The statement must identify the specific individual who is claiming defamation such that a reasonable person would know who the statement is referring to. While it is possible to defame small groups of individuals who can be easily identified, the law generally does not allow for defamation claims against broad groups of people. For instance, if you said that “Ethnic group A are all a bunch of thieves!”, anyone who happened to be in ethnic group A would have no claim against you – even though they might be easily identifiable as belonging to group A. So go ahead and indulge your bigotry by saying all you want about certain racial, ethnic, or religious groups. It won’t matter in terms of defamation law.

3. Falsity – The primary point of any defamation claim is that the defamatory statement must be false. Truth is generally a solid defense in defamation claims. Claiming that a child molester is indeed a child molester is not actionable (just make sure that you are right in that claim before you say it). Likewise, pure opinions are not grounds for defamation since they can’t be proven true or false. But be careful here – Merely couching a factual statement in the form of an opinion might not get you off the hook.

For example, if you were to say, “In my personal opinion, Mr. X crossed the street last Thursday, entered the white building and robbed the store…” some courts might hold that in the context of how you made the statement, your declaration really wasn’t an opinion but rather an assertion of fact. The bottom line test is to determine if the statement clearly conveys an underlying claim that can be proven true or false in court.

By the same token, these same courts probably wouldn’t allow a defamation claim to go forward simply because a plaintiff was called “a racist”. The term “racist” has become too much a vague “term or art” to be proven demonstrably true or false for purposes of defamation. (Contrast that with saying, “Mr. X is a card carrying member of the Ku Klux Klan and attends their meetings wearing white sheets and hoods each month.” If it was untrue, then this statement could satisfy the “falsity” element of defamation since it could be categorically proven to be true or false.

4. Appropriate Level of Fault – A plaintiff must also prove an appropriate level of fault on the part of the defendant who made the defamatory statements. Just what constitutes the “appropriate level of fault” will depend on if the plaintiff is considered a “public figure” or a “private figure”.

A “private figure” refers to the everyday schmoes walking the street. People whose names are not household names or not in the public eye. In other words, “private figures” are people just like you and me. (Note to Tom Cruise: If you happen to be reading this article, the last sentence actually doesn’t apply to you. Please read more below regarding “public figures”.)

A “public figure” generally refers to someone who is either a household name or is in the public eye within a large segment of a community. Virtually all elected officials are “public figures”, as are major media celebrities. Other governmental officials such as the chief of police also qualify as “public figures”.

In addition to “private” and “public” figures, you also have something in-between known as a “limited purpose public figure”. “Limited purpose public figures” are people that might not be a household name or particularly famous. However, due to some type of voluntary action on their part, they have become part of some public debate, controversy or event surrounding an issue of public interest. “Limited purpose public figures” are treated the same as full-blown “public figures” for purposes of defamation law.

Some examples of “limited purpose public figures” have included: Richard Jewell, the previously anonymous Atlanta security guard who uncovered a bomb plot at the Olympics, told his story to the media, and then was later falsely accused of being in on the bomb plot; The owner of a waste management company that had a governmental contract with a state county; The plaintiff in a child custody dispute who made several statements to the media concerning the case; Rhonda Miller, a woman who publicly accused Governor Arnold Schwarzenegger of sexual harassment while on a movie set.

There admittedly is some murkiness in this area. Some courts may differ in defining just who exactly is a “limited purpose public figure”. The issues aren’t all that clear in the case of the wife or family members of a public figure if the family members themselves make deliberate attempts to try and stay out of the public spotlight. Although there have been a few instances of “involuntary limited purpose public figures”, courts will usually look to see if people have deliberately thrust themselves into the media or a public controversy to help them make a determination in the issue.

So now that we have at least some grasp as to the issue of “private” versus “public figures”, let’s get back to the central question of determining just what the “appropriate level of fault” is for purposes of a defamation claim.

If the court rules that the plaintiff is a private figure, then he or she must only show that the defendant was at least “negligent” in stating or publishing the false statements.

Simply put, this means that an objectively reasonable person would have known that the statements were likely false, or at least should have known they were likely false if they did a reasonable amount of research into the matter considering the information that was available to them at the time.

If the court rules that the plaintiff is either a public figure or limited purpose public figure however, then it must be shown that a defendant acted with actual “malice” in repeating the false statement.

“Malice” in this context doesn’t mean that the defendant acted with anger or bad feelings when the statement was made. In a defamation lawsuit, “malice” means either that the defendant actively knew that the statement was false, or acted with such a high degree of recklessness that one could objectively conclude that the defendant likely knew that it was false but still went out of his or her way to avoid the truth in an attempt to create “plausible deniability” in a defamation lawsuit. In other words, enough evidence needs to be shown that proves the defendant had serious doubts in his or her own mind regarding the truth of the statement.

5. Damages – Generally speaking, a plaintiff in any lawsuit has to prove that specific damages were caused by the defendant which can be somehow remedied by the courts. The notion of showing specific damages in a defamation claim can be a slippery proposition. After all, how does one put a price tag on their reputation?

Some courts hold that some categories of defamatory remarks do not require the need to show specific damages. Damages will simply be presumed if the false allegations fall into certain categories including:

a. Falsely accusing the plaintiff of committing a serious crime;

b. False statements that harm the plaintiff in his or her business or profession;

c. Falsely alleging that the plaintiff has acquired either a venereal disease or a particularly loathsome disease;

d. Allegations of serious sexual misconduct.

While the notion of “presumed damages” for defamation goes all the way back into the era of common-law, the rules in this area have been considerably watered down and narrowed by many courts in recent years. For instance, as sexual mores have changed over the years, so has the definition of “sexual misconduct”. While it used to be defamatory to falsely label someone as a homosexual, at least one court has now explicitly rejected the notion that such a statement would constitute defamation in today’s social climate. So as the laws continue to evolve, the notion of presumed damages for defamation becomes murkier and murkier.

Baring a finding of presumed damages, a plaintiff will need to show specific harm stemming from the defamatory statements. Merely having one’s feelings hurt will not be enough. If specific damages are not proven, courts may simply decide to award nominal damages of a few dollars (if any).

Also keep in mind that some people may already have bad reputations that can’t be damaged further in the community. If you falsely accuse a serial child molester of being a thief, few courts would likely rule that such a person has been defamed and is entitled to a damage award.

This should give you a basic understanding concerning the fundamentals of defamation law.

Keep in mind that this is only a starting primer and (like any aspect of the law) it may have some nuances and exceptions depending on the facts of the case.

For instance, some individuals may be immune from defamation suits in certain instances. U.S. Senators are essentially free to defame anyone they want as long as their comments are made on the floor of Congress. Trial lawyers also have limited immunity against defamation lawsuits when making allegations in court. (After all, how could you expect us lawyers to make a decent living if we couldn’t freely defame people in court?)

Some states have statutes that allow people to avoid defamation lawsuits if they publicly retract their statements in such a way as to reach the same audience of people they told the original statement to.

Other states such as California have what are known as anti-SLAPP statues which allow defendants who spoke about issues of public concern to collect their attorney’s fees and court costs from the other side unless the plaintiff can show early on that the defamation lawsuit is likely to succeed on its merits. Therefore, potential plaintiffs might be well advised to make sure they have a serious and legitimate claim before they go around threatening people with defamation lawsuits. It is one thing to wax poetic about abstractions like one’s “reputation in the community”. It is quite another thing to put such abstractions into a concrete complaint to be filed in court. Unless you are confident that you have met all the criteria and can show concrete damages, you may find that many judges aren’t entirely comfortable with defamation lawsuits if they suspect a plaintiff might simply be thin-skinned in reacting to an everyday argument.

Proceed wisely, and consider consulting an attorney with further questions if you are contemplating either bringing or defending a defamation lawsuit. If you should exaggerate the level of falsity or harm in any given comment made about you, then you might just get accused of engaging in “thespian-like” activities.

[Note: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author,, or any of its affiliates shall have any liability stemming from this article.]
Source: Staff Writer