Defamation,
Libel and Slander Law
Contents
It
is not unusual for attorneys to receive inquiries about defamation actions from
people who are in conflicts with neighbors or other members of their
communities, and have become the subjects of vicious lies. The area of law most
implicated by that type of conduct is "defamation of character", a
cause of action which is generally defined to include "libel" and
slander".
What Are Defamation, Libel and Slander?
Generally
speaking, defamation is the issuance of a false statement about another person,
which causes that person to suffer harm. Slander involves the making of
defamatory statements by a transitory (non-fixed) representation, usually an
oral (spoken) representation. Libel involves the making of defamatory
statements in a printed or fixed medium, such as a magazine or newspaper.
Typically,
the elements of a cause of action for defamation include:
- A false and defamatory statement
concerning another;
- The unprivileged publication of
the statement to a third party (that is, somebody other than the person
defamed by the statement);
- If the defamatory matter is of
public concern, fault amounting at least to negligence on the part of the
publisher; and
- Damage to the plaintiff.
In
the context of defamation law, a statement is "published" when it is
made to the third party. That term does not mean that the statement has to be
in print.
Damages
are typically to the reputation of the plaintiff, but depending upon the laws
of the jurisdiction it may be enough to establish mental anguish.
Most
jurisdictions also recognize "per se" defamation, where the
allegations are presumed to cause damage to the plaintiff. Typically, the
following may constitute defamation per se:
- Attacks on a person's
professional character or standing;
- Allegations that an unmarried
person is unchaste;
- Allegations that a person is
infected with a sexually transmitted disease;
- Allegations that the person has
committed a crime of moral turpitude;
While
actions for defamation have their roots in common law, most jurisdictions have
now enacted statutes which modify the common law. They may change the elements
of the cause of action, limit when an action may be filed, or modify the
defenses to an action for defamation. Some may even require that the defendant
be given an opportunity to apologize before the plaintiff can seek non-economic
damages.
What Defenses Are Available To People Accused of Defamation?
The
most important defense to an action for defamation is "truth", which is
an absolute defense to an action for defamation.
Another
defense to defamation actions is "privilege". For example, statements made by
witnesses in court, arguments made in court by lawyers, statements by
legislators on the floor of the legislature, or by judges while sitting on the
bench, are ordinarily privileged, and cannot support a cause of action for
defamation, no matter how false or outrageous.
A
defense recognized in most jurisdictions is "opinion". If the
person makes a statement of opinion as opposed to fact, the statement may not
support a cause of action for defamation. Whether a statement is viewed as an
expression of fact or opinion can depend upon context - that is, whether or not
the person making the statement would be perceived by the community as being in
a position to know whether or not it is true. If your employer calls you a
pathological liar, it is far less likely to be regarded as opinion than if such
a statement is made by somebody you just met. Some jurisdictions have
eliminated the distinction between fact and opinion, and instead hold that any
statement that suggests a factual basis can support a cause of action for
defamation.
A
defense similar to opinion is "fair comment on a matter of public interest". If the
mayor of a town is involved in a corruption scandal, expressing the opinion
that you believe the allegations are true is not likely to support a cause of
action for defamation.
A
defendant may also attempt to illustrate that the plaintiff had a poor
reputation in the community, in order to diminish any claim for damages
resulting from the defamatory statements.
A
defendant who transmitted a message without awareness of its content may raise
the defense of "innocent dissemination". For example, the post office
is not liable for delivering a letter which has defamatory content, as it is
not aware of the contents of the letter.
An
uncommon defense is that the plaintiff consented to the dissemination of the
statement.
Public Figures
Where
a public figure attempts to bring an action for defamation, the public figure
must prove an additional element: That the statement was made with "actual malice". In
translation, that means that the person making the statement knew the statement
to be false, or issued the statement with reckless disregard as to its truth..
Defamation,
Libel and Slander Law
Contents
It
is not unusual for attorneys to receive inquiries about defamation actions from
people who are in conflicts with neighbors or other members of their
communities, and have become the subjects of vicious lies. The area of law most
implicated by that type of conduct is "defamation of character", a
cause of action which is generally defined to include "libel" and
slander".
What Are Defamation, Libel and Slander?
Generally
speaking, defamation is the issuance of a false statement about another person,
which causes that person to suffer harm. Slander involves the making of
defamatory statements by a transitory (non-fixed) representation, usually an
oral (spoken) representation. Libel involves the making of defamatory
statements in a printed or fixed medium, such as a magazine or newspaper.
Typically,
the elements of a cause of action for defamation include:
- A false and defamatory statement
concerning another;
- The unprivileged publication of
the statement to a third party (that is, somebody other than the person
defamed by the statement);
- If the defamatory matter is of
public concern, fault amounting at least to negligence on the part of the
publisher; and
- Damage to the plaintiff.
In
the context of defamation law, a statement is "published" when it is
made to the third party. That term does not mean that the statement has to be
in print.
Damages
are typically to the reputation of the plaintiff, but depending upon the laws
of the jurisdiction it may be enough to establish mental anguish.
Most
jurisdictions also recognize "per se" defamation, where the
allegations are presumed to cause damage to the plaintiff. Typically, the
following may constitute defamation per se:
- Attacks on a person's
professional character or standing;
- Allegations that an unmarried
person is unchaste;
- Allegations that a person is
infected with a sexually transmitted disease;
- Allegations that the person has
committed a crime of moral turpitude;
While
actions for defamation have their roots in common law, most jurisdictions have
now enacted statutes which modify the common law. They may change the elements
of the cause of action, limit when an action may be filed, or modify the
defenses to an action for defamation. Some may even require that the defendant
be given an opportunity to apologize before the plaintiff can seek non-economic
damages.
What Defenses Are Available To People Accused of Defamation?
The
most important defense to an action for defamation is "truth", which is
an absolute defense to an action for defamation.
Another
defense to defamation actions is "privilege". For example, statements made by
witnesses in court, arguments made in court by lawyers, statements by
legislators on the floor of the legislature, or by judges while sitting on the
bench, are ordinarily privileged, and cannot support a cause of action for
defamation, no matter how false or outrageous.
A
defense recognized in most jurisdictions is "opinion". If the
person makes a statement of opinion as opposed to fact, the statement may not
support a cause of action for defamation. Whether a statement is viewed as an
expression of fact or opinion can depend upon context - that is, whether or not
the person making the statement would be perceived by the community as being in
a position to know whether or not it is true. If your employer calls you a
pathological liar, it is far less likely to be regarded as opinion than if such
a statement is made by somebody you just met. Some jurisdictions have
eliminated the distinction between fact and opinion, and instead hold that any
statement that suggests a factual basis can support a cause of action for
defamation.
A
defense similar to opinion is "fair comment on a matter of public interest". If the
mayor of a town is involved in a corruption scandal, expressing the opinion
that you believe the allegations are true is not likely to support a cause of
action for defamation.
A
defendant may also attempt to illustrate that the plaintiff had a poor
reputation in the community, in order to diminish any claim for damages
resulting from the defamatory statements.
A
defendant who transmitted a message without awareness of its content may raise
the defense of "innocent dissemination". For example, the post office
is not liable for delivering a letter which has defamatory content, as it is
not aware of the contents of the letter.
An
uncommon defense is that the plaintiff consented to the dissemination of the
statement.
Public Figures
Where
a public figure attempts to bring an action for defamation, the public figure
must prove an additional element: That the statement was made with "actual malice". In
translation, that means that the person making the statement knew the statement
to be false, or issued the statement with reckless disregard as to its truth..
Defamation,
Libel and Slander Law
Contents
It is not
unusual for attorneys to receive inquiries about defamation actions from people
who are in conflicts with neighbors or other members of their communities, and
have become the subjects of vicious lies. The area of law most implicated by
that type of conduct is "defamation of character", a cause of action
which is generally defined to include "libel" and slander".
What Are Defamation, Libel and Slander?
Generally
speaking, defamation is the issuance of a false statement about another person,
which causes that person to suffer harm. Slander involves the making of
defamatory statements by a transitory (non-fixed) representation, usually an
oral (spoken) representation. Libel involves the making of defamatory
statements in a printed or fixed medium, such as a magazine or newspaper.
Typically, the
elements of a cause of action for defamation include:
- A false and defamatory statement concerning
another;
- The unprivileged publication of the statement to
a third party (that is, somebody other than the person defamed by the
statement);
- If the defamatory matter is of public concern,
fault amounting at least to negligence on the part of the publisher; and
- Damage to the plaintiff.
In the context
of defamation law, a statement is "published" when it is made to the
third party. That term does not mean that the statement has to be in print.
Damages are
typically to the reputation of the plaintiff, but depending upon the laws of
the jurisdiction it may be enough to establish mental anguish.
Most
jurisdictions also recognize "per se" defamation, where the
allegations are presumed to cause damage to the plaintiff. Typically, the
following may constitute defamation per se:
- Attacks on a person's professional character or
standing;
- Allegations that an unmarried person is
unchaste;
- Allegations that a person is infected with a
sexually transmitted disease;
- Allegations that the person has committed a
crime of moral turpitude;
While actions
for defamation have their roots in common law, most jurisdictions have now
enacted statutes which modify the common law. They may change the elements of
the cause of action, limit when an action may be filed, or modify the defenses
to an action for defamation. Some may even require that the defendant be given
an opportunity to apologize before the plaintiff can seek non-economic damages.
What Defenses Are Available To People Accused of Defamation?
The most
important defense to an action for defamation is "truth", which is an absolute defense to an action for
defamation.
Another defense
to defamation actions is "privilege". For example, statements
made by witnesses in court, arguments made in court by lawyers, statements by
legislators on the floor of the legislature, or by judges while sitting on the
bench, are ordinarily privileged, and cannot support a cause of action for
defamation, no matter how false or outrageous.
A defense
recognized in most jurisdictions is "opinion". If the person makes a
statement of opinion as opposed to fact, the statement may not support a cause
of action for defamation. Whether a statement is viewed as an expression of
fact or opinion can depend upon context - that is, whether or not the person
making the statement would be perceived by the community as being in a position
to know whether or not it is true. If your employer calls you a pathological
liar, it is far less likely to be regarded as opinion than if such a statement
is made by somebody you just met. Some jurisdictions have eliminated the
distinction between fact and opinion, and instead hold that any statement that
suggests a factual basis can support a cause of action for defamation.
A defense
similar to opinion is "fair
comment on a matter of public interest". If the mayor of a town is involved in a
corruption scandal, expressing the opinion that you believe the allegations are
true is not likely to support a cause of action for defamation.
A defendant may
also attempt to illustrate that the plaintiff had a poor reputation in the
community, in order to diminish any claim for damages resulting from the
defamatory statements.
A defendant who
transmitted a message without awareness of its content may raise the defense of
"innocent dissemination". For example, the post office is not liable
for delivering a letter which has defamatory content, as it is not aware of the
contents of the letter.
An uncommon
defense is that the plaintiff consented to the dissemination of the statement.
Public Figures
where a public
figure attempts to bring an action for defamation, the public figure must prove
an additional element: That the statement was made with "actual malice". In translation, that
means that the person making the statement knew the statement to be false, or
issued the statement with reckless disregard as to its truth. For example,
Ariel Sharon sued Time Magazine over allegations of his conduct relating to the
massacres at the Sabra and Shatila refugee camps. Although the jury concluded
that the Time story included false allegations, they found that Time had not
acted with "actual malice" and did not award any damages.
