What is Defamation?
Defamation is a civil charge or a “tort” that permits a person to sue someone who makes false statements about him or her. Defamation is also referred to as slander when the false statements are spoken, and libel when the false words are published. When someone says something negative that is untrue about you, you are entitled to sue them and recover damages. In some rare cases, a government prosecutor may also bring a criminal action for defamation.
Requirements for Defamation
In order for a statement to be defamation, it must meet certain criteria.
- First, you must prove that the defendant made the statement about you.
- Second, you must prove that the statement was false. If a person says something negative about you that is true, in most cases, you cannot sue for defamation, although if you are a private citizen (not a celebrity or politician) there is a separate civil tort in some jurisdictions in which you can sue someone who publicly discloses private information about you.
- Third, the person who made the statement must have been negligent in determining whether it was true.
- Fourth, the statement must have been made in some public forum, so you can’t sue your mother-in-law for complaining about you to your husband at the family picnic.
- Finally, you must prove that damages actually occurred to your reputation as a result of the statement.
Proving that damages actually occurred is often the most difficult aspect of proving defamation. In order to prove this element, you need to show that your reputation was harmed in some way because people believed the false statements. A 1988 case involving Larry Flynt and Jerry Falwell is one example of how this can be difficult. Flynt published some defamatory statements about Jerry Falwell; however, the statements were presented in cartoon form and so absurd that no one could have believed they were true. As such, Flynt was not liable for defamation of character.
Different defamation rules apply for celebrities and public figures. In the case of celebrities, they must prove that actual malice occurred. In other words, the person or publication making the defamatory statement must have known that the statement was untrue or behaved with reckless disregard for the truth. This is a higher standard then the negligence standard which applies in standard defamation of character cases.
Defenses to defamation of character include truth, opinion, public interest, consent, lack of injury, or privilege.
- Truth means that the person making the remarks reasonably believed they were true.
- Opinion ensures that people cannot be accused of slander for stating their honest opinion of someone.
- Public interest means the statement was a reasonable position expressed about a matter of interest to the public, such as politics.
- Lack of injury means that the victim’s reputation was not actually injured by the false statements.
- Privilege protects statements made in a court of law, or statements made to a doctor, attorney, spouse or other person whose relationship with the speaker is protected by special laws.
The penalties for the tort of defamation of character are purely monetary; the person making the statements must pay damage to the defamed victim. Courts tend to take a narrow view of the definition of defamation, weighing a person’s right to be free from defamation against the constitutional protections afforded to free speech.