Defamation, also known as defamation of character, occurs when false statements are made about someone to a third party. Libel occurs when defamation is made in writing, while slander refers to spoken defamation. Several conditions must be met in order to make a claim of defamation.
Elements of Defamation
1. A defamatory statement was made.
If the defamatory statement cannot be proven, then no claim can be made.
2. The statement was made to a third party.
Whether spoken or written, it is not defamation if the statement was made only to the plaintiff.
3. The plaintiff was damaged in some way.
Damages are not necessarily monetary. If the plaintiff suffered humiliation or ridicule by the community, he or she may have been damaged by the statement.
Defamation Per Se
Certain types of defamatory statements are automatically considered to have caused damage to the plaintiff, without the damage needing to be proven. These statements constitute defamation per se. The exact statements that qualify may vary between jurisdictions, but often include:
1. Statements concerning the plaintiff’s occupation.
2. Allegations of an unmarried person’s being unchaste.
3. Allegations of a “loathsome disease,” which may include sexually transmitted diseases or mental illness.
4. Allegations of certain criminal activities.
If the plaintiff is a public figure, then another element must be proven. A public figure must demonstrate that the statement was made with “actual malice.” To constitute actual malice, the defendant must have either made the statement knowing that it was false or have made the statement with reckless disregard for the truth.
Celebrities and politicians are well-known public figures, but others may also qualify. If the plaintiff has been at the forefront of a controversy, he or she may be considered an involuntary public figure. A limited public figure is someone who has become a public figure within a specific area of interest. He or she would need to demonstrate actual malice in a defamation case associated with that specific area of concern.
Defenses to Defamation
There are several defenses available to those who are accused of defamation. Although they may vary between jurisdictions, these are the most common:
If the statement is truthful, it is not defamation, even if it is hurtful. Other laws such as violation of privacy may apply, but truth is an absolute defense to an allegation of defamation.
Statements made in court or on the floor of the legislature are generally considered privileged. These statements may not be considered slander or libel.
In many jurisdictions a defamation claim cannot be brought based on a statement made as an opinion rather than fact. It is up to the court to decide the context of the statement.
4. Fair Comment on a Matter of Public Interest.
This defense is related to the Public Figure concern. If a comment is made about a community scandal, for example, it is generally not considered slander.
5. Poor Reputation of Plaintiff.
Although this is not a defense against defamation, establishing that the plaintiff has a poor reputation in the community may reduce damages.
6. Innocent Dissemination.
Someone who transmits a message without knowing its contents cannot be held liable for disseminating those contents. For example, the Post Office cannot be charged with libel for delivering a defamatory letter.
7. Plaintiff Consent.
If the plaintiff agreed to the statement’s transmission, he or she cannot then claim defamation.
Whether to File a Defamation Suit
If there are grounds for a defamation suit, it is not always wise to file the suit. Attorneys rarely handle defamation cases on contingency, because the final damage award is generally small. A considerable amount of time and money may be spent in pursuing the matter, with very little net reward. Filing the suit also opens up the possibility of exposing the defamatory statements to a wider audience. If the controversy is great enough the plaintiff may actually become an involuntary public figure.
There are many reasons that plaintiffs pursue defamation suits despite the limited monetary awards. A public figure, for example, may find that a lawsuit is the only way to stop a truly vicious smear campaign.