What is Defamation?

When people refer to defamation of character, they are typically using this term as a catchall for any statement that damages the reputation of another. In legal terms, there are two types of defamation. Written defamation is referred to as libel while spoken defamation is referred to as slander. While defamation of character is not a crime, a person who has been defamed can sue the alleged defamer for monetary damages in a civil court.

Defamation Law

The law governing defamation attempts to balance freedom of speech against protecting a person’s reputation. While laws regarding defamation vary from state to state, there are general rules that apply across the country. Specifically, a person who believes he or she has been defamed, whether through libel or slander, must establish that the statement was published, false, injurious, and not privileged.

A statement can be a gesture, a picture, spoken or written. Most courts consider a defamatory written statement (i.e., libel) more harmful than a defamatory statement that is spoken (i.e., slander) because writings last longer.

Published simply means that the statement needs to be read or heard by a third party. In other words, someone other than the person who made the defamatory statement or the person to whom the defamatory statement was referring. The statement just needs to be made public through any means.

The defamatory statement must be false. If it is true, then the statement will not be considered damaging. That being said, even mean or disparaging remarks may not rise to the level of defamation. Notably, opinions -- no matter how bad they may be -- are not considered defamation because you cannot objectively prove their falsehood.

A person suing for defamation must be able to establish that the statement caused an injury. Examples would include lost work and/or wages, harassment by the press, excommunication by family and friends, or other objective harm.

Finally, the defamatory statement must not be privileged. In some cases, even if the statement is defamatory a person cannot sue. An example of privileged statements include lawmakers who make statements in legislative chambers or in official materials.

Defamation and Public Officials

Unlike the average person, who has some protection from defamation, public officials have limited protection. This is because the public has an inherent right to criticize those who govern them and put themselves in the public sphere. When a public official is defamed regarding behavior in office, he or she must prove all of the elements of defamation - that the statement was published, false, injurious, and not privileged - as well as showing the defamor acted with actual malice. Actual malice is when the person who made the defamatory statement knew it was false. Alternatively, the defamer did not care whether the statement was false or not and was reckless with the truth (i.e., did not bother to fact check before publishing). This higher threshold of proof also applies to celebrities and other influential or famous people.

If you have questions about defamation, or believe you have been a victim of defamation, contact the knowledgeable attorneys at Parry & Pfau today.

(image courtesy of Toa Heftiba)