If you’re like most people, you have probably heard the terms libel and slander before, but you may not be entirely sure what they mean. Libel and slander are both forms of defamation, which is the act of making a false statement about someone that damages their reputation.
In this blog post, we will discuss what defamation is, the differences between libel and slander, and some of the defenses that are available to those who have been accused of defamation.
What is Defamation Law?
At its core, defamation law is designed to protect people’s reputations from false and damaging statements. Defamation can take the form of either libel (written defamation) or slander (spoken defamation).
In order for a statement to be considered defamatory, it does not necessarily need to be 100% false. Rather, it must be false and must result in some sort of damage to the reputation of the person who is the subject of the statement.
For example, if someone were to falsely accuse another person of committing a crime, that would likely be considered defamatory because it would damage that person’s reputation.
What are the 6 elements of defamation?
In order for a defamation claim to be successful, the following five elements must be proven:
- That a false statement was made about the plaintiff
- That the statement was published or communicated to a third party
- That the falsity of the statement caused harm to the plaintiff’s reputation
- That the defendant was at fault in making the false statement
- That the plaintiff suffered damages as a result of the defamation
- The statement is not privileged.
That a False Statement was Made About the Plaintiff
The first element that must be proven in a defamation case is that the defendant made a false statement about the plaintiff. This means that the statement cannot be true, even if it is somewhat harmful to the plaintiff’s reputation. It also means that the statement cannot be an opinion, since opinions are not considered to be factual statements.
For example, if someone were to say “I think John is lazy,” this would not be considered defamation because it is simply an opinion. However, if someone were to say “John is lazy and he never does his job,” this would be considered defamation because it is making a factual claim about John that is not true.
It should also be noted that in some jurisdictions, there may be an additional requirement that the false statement be made with “actual malice.” This means that the defendant must have known that the statement was false at the time that it was made.
That the Statement was Published or Communicated to a Third Party
The second element of defamation is that the false statement must have been published or communicated to a third party. This means that simply making a false statement to the plaintiff will not constitute defamation. The plaintiff must prove that the defendant made the statement to someone else.
It should be noted that in some jurisdictions, there may be an exception to this rule for statements made in private conversations. For example, if two people are having a conversation and one person says something defamatory about another person, this may still be considered defamation.
The reason for this exception is that private conversations can still damage the reputation of the person being discussed. For example, if two people are discussing a co-worker and one person says “I think John is lazy,” this could still damage John’s reputation because it raises doubts about his work ethic.
However, whether or not this exception exists will vary from jurisdiction to jurisdiction, so it is important to check your local laws.
That the Falsity of the Statement Caused Harm to the Plaintiff’s Peputation
The third element of defamation is that the falsity of the statement must have caused harm to the plaintiff’s reputation. This means that simply making a false statement is not enough. The plaintiff must also prove that their reputation was actually damaged as a result of the statement.
For example, if someone were to say “John is lazy,” this would not be considered defamation because it would not cause any harm to John’s reputation. However, if someone were to say “John is lazy and he never does his job,” this would be considered defamation because it would damage John’s reputation by making him seem like a bad employee.
It should be noted that in some jurisdictions, there may be an exception to this rule for statements made about public figures. For example, if a public figure makes a false statement about another public figure, the harmed individual may have difficulty proving that their reputation was actually damaged.
This is because public figures already have a certain amount of “baggage” and it is assumed that they can handle criticism. However, whether or not this exception exists will vary from jurisdiction to jurisdiction, so it is important to check your local laws.
That the Defendant was at Fault in Making the False Statement
The fourth element of defamation is that the defendant must be at fault in making the false statement. This means that the plaintiff cannot recover damages if the defendant can prove that they reasonably believed that the statement was true.
For example, if someone were to say “John is lazy,” this would not be considered defamation because it is not a factual statement. However, if someone were to say “John is lazy and he never does his job,” this would be considered defamation because it is a factual claim about John that is not true.
That the Plaintiff Suffered Damages as a Result of the Defamation
The fifth element of defamation is that the plaintiff must have suffered damages as a result of the defamation. This means that the plaintiff must prove that they lost something (such as their job or an opportunity for a promotion) because of the false statement.
For example, if someone were to say “John is lazy,” this would not be considered defamation because it would not cause any harm to John’s reputation. However, if someone were to say “John is lazy and he never does his job,” this could be considered defamation because it could damage John’s reputation and make it harder for him to get hired for jobs in the future.
The Statement is Not Privileged
The final element of defamation is that the statement must not be privileged. This means that the defendant cannot use certain defenses if the statement was made in a court of law, during a government proceeding, or in another type of situation where the speaker is protected from liability.
What are the three types of defamation?
Now that we have gone over the elements of defamation, let’s discuss the three types of defamation: libel, slander, and defamation per se.
Libel:
Libel is a type of defamation that is written or published. This means that it can be in the form of a blog post, article, book, or even a tweet. The key here is that it must be published in some way.
Slander:
Slander is a type of defamation that is spoken. This means that it must be said out loud and cannot be written down.
Defamation per se:
Defamation per se is a type of defamation that does not require proof of damages. This means that if the statement meets certain criteria (such as being false and harmful), then the plaintiff will automatically be presumed to have suffered damages.
Each type of defamation has its own set of rules and defenses, so it is important to know which one you are dealing with before taking any legal action.
Defenses against libel and slander?
If you have been accused of making a false statement that has damaged someone’s reputation, there are a few defenses that you may be able to use.
Truth:
One defense against defamation is that the statement you made is true. This can be difficult to prove, but if you have evidence to back up your claim, then you may be able to use this defense.
Opinion:
Another defense against defamation is that the statement you made is an opinion and not a fact. For example, if someone were to say “I think John is lazy,” this would not be considered defamation because it is an opinion. However, if someone were to say “John is lazy and he never does his job,” this would be considered defamation because it is a factual claim about John that is not true.
Privilege:
The final defense against defamation is privilege. This means that the statement was made in a court of law, during a government proceeding, or in another type of situation where the speaker is protected from liability. Consent can be absolute or qualified
Absolute Privilege:
An example of an absolute privilege would be a statement made by a witness in a court of law. The witness is protected from defamation liability because their testimony is essential to the proceedings.
Qualified Privilege:
An example of a qualified privilege would be a statement made by someone in the course of their job. For example, if an employer were to make a false statement about an employee in order to get them fired, the employee may have a claim for defamation. However, the employer would likely be able to use the qualified privilege defense because they were acting within the scope of their job.
Consent:
Another defense against defamation is consent. This means that the person who was defamed consented to having the false statement made about them. For example, if a celebrity were to give an interview in which they make false statements about themselves, they would not be able to sue for defamation because they consented to having the statements made.
Retraction of the Allegedly Defamatory Statement:
If you have made a false statement about someone and you later retract the statement, this can be used as a defense against defamation.
Apology:
Similar to a retraction, an apology can also be used as a defense against defamation.
These are just some of the defenses that may be available to you if you have been accused of making a false statement that has damaged someone’s reputation. It is important to speak with an attorney to see if any of these defenses apply to your situation.
Remedies for Defamation
If you have been the victim of defamation, there are a few remedies that may be available to you.
Compensatory Damages:
Compensatory damages are designed to compensate the plaintiff for the harm that they have suffered. This may include things like medical bills, lost wages, and emotional distress.
Punitive Damages:
Punitive damages are designed to punish the defendant for their actions. These damages are usually only awarded in cases where the defendant’s conduct was particularly egregious.
Injunctive Relief:
Injunctive relief is a court order that requires the defendant to do (or not do) something. For example, if someone has made false statements about you on social media, you may be able to get an injunction that requires them to take the statements down.
Advantages of Defamation Law
- It protects the reputation of individuals from false statements.
- It deters people from making false statements about others.
- It provides a remedy for those who have been harmed by false statements.
Disadvantages of Defamation Law
- It can be used to silence critics and stifle free speech.
- It can be used to harass and intimidate people.
- It can have a chilling effect on the media.
Journalism and Defamation: Are Journalists Protected from Defamation Suits?
Yes, journalists are protected from defamation suits in certain situations. The media is given a lot of leeway when it comes to reporting on matters of public interest. This is because it is essential for the public to have access to information about what is going on in the world around them.
However, there are some limits to this protection. For example, if a journalist makes a false statement about someone that is not related to a matter of public interest, they may be sued for defamation.
Additionally, if a journalist reports on something that is true but does so in a way that is unfair or misleading, they may also be sued for defamation. This is why it is important for journalists to take care when reporting on sensitive topics.
Defamation Law and the Right to Free Speech
Defamation law is often seen as being in conflict with the right to free speech. This is because defamation law can be used to silence critics and stifle free speech. However, there are some limits to this.
For example, truth is an absolute defense to defamation. This means that if you make a statement that is true, you cannot be sued for defamation even if the statement damages someone’s reputation. Additionally, opinions are also protected from defamation suits. This means that you cannot be sued for expressing your opinion about someone, even if that opinion is negative.
Finally, public figures have a higher burden of proof when it comes to defamation. This means that they must prove that the person who made the false statement did so with actual malice. This is a high standard to meet, and it makes it difficult for public figures to win defamation suits.
All of these factors show that defamation law is not necessarily in conflict with the right to free speech. While there are some situations in which defamation law may be used to silence critics, there are also many situations in which it does not apply. This makes it possible for people to express their opinions without fear of being sued.
Conclusion
Defamation law is a complex area of the law that can be used to protect the reputation of individuals from false statements.
It can also be used to silence critics and stifle free speech. However, there are some limits to this. For example, truth is an absolute defense to defamation, and opinions are also protected from defamation suits. Additionally, public figures have a higher burden of proof when it comes to defamation.
All of these factors show that defamation law is not necessarily in conflict with the right to free speech. while there are some situations in which it may be used to silence critics, there are also many situations in which it does not apply. This makes it possible for people to express their opinions without fear of being sued.
Do you have any questions about defamation law? Leave a comment below and we will try to answer them!