Defamation

Generally

Defamation is defined as the act of harming the reputation of another by making a false statement to a third person. Defamation is an invasion of the interest in reputation. The reputation of ‘another’ may refer to a person, a group of persons, or to some other form of legal entity, such as a corporation. Defamation is the result of one of two related harms, libel and slander.

Libel Versus Slander

A general rule of thumb known by most attorneys when trying to distinguish the two types of defamatory statements is that libel is written whereas slander is oral. This covers the idea in a general way but tends to mislead because defamation may be published without the use of words, by the use of a slanderous gesture for example, and hence is neither written or oral. Generally, libel is a defamatory statement expressed in a fixed medium, especially writing, but also by way of pictures or signs. Slander, on the other hand, is a defamatory statement expressed in more transitory forms such as speech and gestures. Remember, slander and libel are the two different types of defamatory statements.

Elements

In order to prove the tort of defamation, the plaintiff must prove several elements. The first element that the plaintiff must prove is that the defamatory matter was published, i.e., communicated to some third person who understood its defamatory meaning and application to the plaintiff. For example, a statement made only to the defamed person is not published, and is therefore not a tort. There may be a publication even though none was intended, as in a case where a defamatory personal letter is sent, knowing that the addressee is usually absent and that others may read his mail. In addition, the originator of a defamatory statement is liable for any foreseeable republication of that defamatory statement. However, one edition of a magazine, television broadcast, etc. containing defamatory material is treated as a unit, giving rise to one cause of action against the originator of the statement.

The second element a plaintiff must prove to sustain his legal cause of action for defamation is that the statement made was of a defamatory character. Regarding a libelous statement, the plaintiff must prove that the allegedly libelous statement was either ‘libel per se’, or prove that the statement caused the plaintiff some kind of special damages. Libel per se means that the statement is defamatory on its face and that there is no need to prove that damage was done to the plaintiff. The statement "Frank is a thief" is an example of libel per se, whereas the statement "Frank is a republican" is not. "Frank is a republican" may be considered libelous in some circumstances, if Frank was a lobbyist for the democratic party for example, but the statement is not libelous on its face and Frank would have to prove that he was somehow damaged by the statement in order to state a cause of action.

Regarding the defamatory character of a slanderous statement, the terms of satisfying the element are similar to that of a libelous statement. Only certain types of oral statements are presumed injurious, or slanderous per se, and to recover for any other utterances the plaintiff must prove actual damage. Statements which are slanderous per se include charging a person with a crime, imputing a person with an infectious disease, directly injuring a person with respect to his office, profession, trade, or business, or imputing a person to impotence or want of chastity.

Where words or other matters are not defamatory per se, but are of ambiguous meaning, or are innocent on their face but defamatory in light of extrinsic circumstances, the plaintiff must plead and prove that they were used in a particular meaning which makes them defamatory. This is called the ‘innuendo’. In order to prove innuendo where the situation is ambiguous, the plaintiff must use extrinsic circumstances which show that the third person to which the defamatory statement was communicated to reasonably understood it in its defamatory sense towards the plaintiff.

Defenses

There are only a few defenses against civil liability for defamation. The first of which is truth. Truth of statements made is a complete defense against civil liability for defamation, regardless of bad faith or malicious purpose. The plaintiff must allege that the statement was false and it is up to the defendant to prove the statement was true.

The second defense to defamation is by demonstrating that the defendant had a privilege which allowed him to make the statement. When a publication is absolutely privileged, there is no liability even though it is made with actual malice by the defendant. Persons absolutely privileged include judicial, legislative and executive officers, and husband and wife. Consent to the publication of the defamatory matter is also considered an absolute privilege.

In certain situations a qualified or conditional privilege is given to defendants where an allegedly defamatory statement is made to protect a recognized interest, in good faith without malice. This privilege is abused where the defendant makes statements maliciously, improperly, or where the defendant does not believe in the truth of the statement or has no reasonable grounds for believing it is true. For example, if an employer communicates to his employees that an employee was terminated for continued tardiness, the terminated employee cannot bring suit for defamation unless the employer made the statements with malice or actual or reckless disregard for the truth.

A qualified privilege also exists in the area of free speech. False statement of fact as well as opinions are protected as long as they are made without actual malice or with knowledge of falsity or with reckless disregard for the truth. The more notorious the plaintiff, the harder it is for him to bring a suit for defamation in violation of this privilege. Public figures and public officials are granted less protection by defamation laws because of the importance of unhindered public opinion and criticism regarding their conduct. Statements made regarding private individuals or private circumstances are granted a greater degree of privacy and demand a higher threshold of truthfulness because of the respect the law gives to the personal privacy every individual is entitled to.

Conclusion

In conclusion, defamation is a tort resulting from an injury to ones reputation. The law in this area is complex due to the need to protect the interests of all individuals no matter how they are situated in society. The courts will strive to recognize the actual harm incurred by the plaintiff and the degree of malice or recklessness expressed by the defendant when making their decisions regarding guilt or innocence.

We here at Domine | Adams, LLP are readily available to answer any questions and to offer assistance to anyone who thinks they may have been wronged by defamatory conduct. Please do not hesitate to contact us.

The above information is intended for general information only. For specific legal advice, contact your legal counsel.

Click here to return to top of page.

To contact Domine | Adams, click here.

© 2008 Domine Adams, LLP | All Rights Reserved