When false or injurious words are printed or spoken that may damage your reputation, you may have a remedy against the person writing or speaking those words. This article will help you understand what a defamation action is, the requirements to make a case, and what constitutes libel and slander.

What is defamation, libel and slander?

In general, the offense of defamation is defined as a damaging lie or untruth shared by one person with another person about a third party. For example, if A shares with B that C is a thief when C is not a thief, C has been "defamed" by A. When the lie or untruth is written or typed, the defamation is called "libel." When spoken or oral, it is called "slander."

Defamation frequently concerns the gossip and conflicts between neighbors, members of communities and the interest in the lives of famous people. Many people believe that such a case might require a great deal of publicity like the newspaper or the radio, but this is not true. All that is needed to make a case for defamation is to satisfy the requirements.

General elements of defamation, slander and libel

1. A false and defamatory statement of fact concerning another person
2. A "publication" of that statement to a third party (someone other than the defamed person)
3. That is understood to be (i) referring to the plaintiff/defamed person; and (ii) tends to harm the reputation of the plaintiff/defamed person and cause damages
4. If the plaintiff/defamed person is a public figure (famous), the fault of the publisher must be "actual malice" (an intent to harm the plaintiff)

Under the law, the word "publication" means "shared with a third party" and not printed. A verbal conversation sharing a lie about another person or a radio broadcast containing the lie can both constitute "publication" under law to make a defamation case. While these are the general elements of defamation actions, your state may have enacted specific statutes that deal with making and defending a case for libel and slander

Damages and "Per Se" Injury

In order to make a successful case for libel or slander, the defamatory words must have directly affected someone’s reputation to the point that they are exposed to hatred, contempt or pecuniary or monetary loss. Simply stating a lie that is not damaging is not actionable, for example, if A told B that C was wearing a blue shirt when C's shirt was actually green. If there was no damage suffered by C, no defamation case for slander could be made.

Despite the need to prove damages to make a defamation case, many jurisdictions also recognize "per se" defamation where, on its face, it's clear that damage has been caused.

• allegations that an unmarried person is "unchaste" or promiscuous
• allegations that a person is infected with a sexually transmitted disease
• allegations that a person has committed a crime of moral turpitude (serious crime)
• damaging statements concerning a person's professional character or standing

Defenses to a defamation claim

Truth. The truth is an absolute defense against a defamation action. If there was no lie or untruth, even if the statement was damaging, no defamation action has arisen. For example, if A told B that C failed her math exam, if C did fail her math exam there is no defamation claim even though A's statement is damaging to C.

Privilege. Statements that are given a special "privilege" under law are not defamatory. An "absolute" privilege is granted to the legislature (president, governor, mayor, etc.) and those involved in judicial proceedings. Arguments made by lawyers, witness testimony in court, statements by judges on the bench are all privileged and not actionable. The news media has "qualified" privilege in order to report the news. In order to be covered by this privilege, news stories must be (i) fair, accurate and complete, (ii) without malice, and (iii) published for justifiable ends.

Opinion. A statement of opinion - as opposed to fact - is generally not one that supports a cause of action for defamation. Whether a statement is opinion or fact might depend upon the context of the statement, such as how the statement is perceived and understood by the community as a whole. Critical reviews by a movie columnist would probably be perceived as an opinion. A representation made by a public official about a private person might be perceived more as a fact than an opinion.

Fair Comments on Matters of Public Interest. This is similar to an opinion. For public matters, there is more leeway granted to those expressing their opinion that they believe damaging allegations against a person to be true. For example, comments made about believing the guilt of a governor involved in a corruption scandal.

Common Carrier. If a company shared the statement involuntarily, such as a telephone company providing conversations or an Internet Service Provider that provided the email to make the defamation possible, that company would generally be immune from prosecution.

Consent. The plaintiff is shown to have prior consented to the sharing of the information.

Statute of Limitations. When the state law for the amount of time to bring a defamation action has expired, it is an absolute defense. Typically the time runs from the date of the publication of the statement or from when the statement could or should have reasonably been discovered by the plaintiff.

Prior Bad Reputation. If the plaintiff/defamed had a bad reputation in the community before the defamation occurred, it can be shown that damages to the plaintiff were minimal. If the plaintiff was already convicted several times of money laundering, an additional defamatory claim might not be nearly as damaging as one made against a person who has never been convicted of a crime.

Supreme Court Ruling Regarding the Press

In 1964, The United States Supreme Court made a landmark decision in New York Times Company v. Sullivan, which gave the press expanded protection from libel actions. In order to protect the free flow of speech and opinion, the Sullivan ruling required famous people or "public figures" must prove in an action for defamation that a publisher of news acted with "actual malice" or a reckless disregard for the truth. This provides the press with greater liberty to write stories and news about public officials, celebrities, and famous people without the fear of being prosecuted except for more severe misconduct.

"Public figures" does not necessarily mean famous celebrities - it can also include regular people who have been thrust into the public eye. For example, people who are accused of high profile crimes (murder, fraud and Ponzi schemes such as Bernie Madoff) can suddenly become public figures and the press will have expanded protection to publish articles about and concerning them.

Whether commencing a defamation action is a good idea

Even though you have been wronged, it may not always be a good idea to pursue a defamation action. In many instances, the effort in time and money is greater than the reward. Some issues to consider before bringing an action for libel and slander include:

• Proof: Proving your case may be very difficult, especially slander which will require witness testimony - you not only have to prove the publication of the false statement but also a monetary figure that represents your damages.
• Damages/Awards: Awards for damages are typically small in defamation cases. Attorneys typically will not take defamation cases on a contingency case for this reason and you may have to fund your own lawsuit. In general, the only defamation cases that are prosecuted are those where it's clear that a significant amount of damages have occurred and can be proven in a court of law.
• Publicity: Filing a case may bring attention of the public to the lie and cause further damage to your reputation. For example, if a news show picks up the case, it could expose your life to the general public.

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