Most people have heard the terms libel and slander. But these two terms fall under the larger umbrella of defamation of character. Libel is written defamation, and slander is spoken defamation. But what is defamation? In this article, we’ll explore the legal definition of defamation, what you’ll need to prove in order to bring a successful defamation claim against someone, and more. (For more on the basics of defamation cases, check out all the articles in our Defamation, Libel, and Slander section.)
Defamation is a false statement someone makes about you, which they publish as a statement of fact, and which harms your personal and/or professional reputation or causes you other damages, including financial loss and emotional distress.
A statement that is merely someone's opinion is not defamatory, unless it is presented as if it were a fact. If someone writes, "It seems to me that John Smith is a crooked politician," that most likely is protected opinion. Courts do not want to hinder public speech, even about controversial subjects, so opinions generally are protected speech. However, if the statement is "John Smith is a crooked politician," and it is not a true statement, it may be defamatory. It is a fine distinction to bear in mind, but an important one.
What Defamation Claimants Need to Prove
To prevail on a defamation claim if you are a private individual, you must first prove that the statement was false. If the statement is true, no matter how unflattering it may be, your claim will be barred because truth is an absolute defense to a defamation action.
In addition, you will need to prove that the statement was made by a person who either knew it was false at the time, or showed "reckless disregard" for whether it was true or false.
Finally, the statement also must be published. The most common examples of publication would be inclusion in a newspaper or magazine, or repetition on a news broadcast on TV or online, but if the speaker repeats the statement to any third party, it may still constitute defamation.
In the average case, if you can prove these three things (false statement, made knowingly or recklessly, and published to others), a court will presume that you have suffered damages without any showing of damages, and you could receive compensation for provable losses. But, to recover so-called "punitive damages," damages intended to make an example of the person or entity that made the statement, you would need to show that the statement was made maliciously, which is a more difficult showing to make.
Likewise, if you are a public figure or official (such as a celebrity or politician or a member of local government), you also must prove that actual malice existed in the making of the statement. This is because courts will presume that, being in the public eye, it is more likely that various statements will be made about you, and that many of them will be opinions. Because people who place themselves in the public domain are more likely to be exposed to questionable statements, it is harder for them to succeed with a defamation claim.
Defamation in the Real World
An example of a defamatory statement may be an accusation made against a public official -- such as that he or she took a bribe or committed a crime, assuming the allegation is presented as fact. An accusation of "police brutality" or immorality may also be defamatory. Allegations of adultery or other sexual misconduct may be considered defamatory if they are false.
Today, the pervasiveness of Internet-based media makes it difficult to draw the line between opinion and defamatory speech. Many opinion-based publications (such as blogs) are widely read on daily basis. But not everything on a blog or on a person's own website is automatically deemed opinion. This area of the law is constantly evolving, and is especially important to monitor given the increasing reliance on the Internet for communication and media content.
The ‘Privilege’ Defense
Truth is not the only defense to a defamation claim. Certain statements, even if defamatory, may be privileged and therefore not actionable. The rules of privilege are complicated, but one example, is statements made by officials in the context of an investigation or other official duty. These may not be actionable even when otherwise defamatory, because the law encourages vigorous investigation, especially of crimes, and it’s in the best interest of the public for officials not to be hampered in their ability to perform their jobs. The same may be true of statements made in court. Privileged speech may be absolutely protected or "qualified" (protected under certain conditions), depending on the jurisdiction. (Learn more about The Privilege Defense to a Claim of Defamation.)