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Libel and Slander- Two Forms of Defamation
Libel and slander are both names for defamation. Libel is written, and slander is verbal. The two are otherwise identical.
The elements of defamation.
Whether written or verbal, the following elements constitute defamation:
- A false statement.
- An unprivileged publication to a third person.
- Negligence or greater fault by the publisher ( i.e. , the person who wrote or spoke the false statement).
- Damage to the reputation of the person being talked about.
What is a false statement in the eyes of the law?
Generally speaking, the publisher of the statement must be talking about a fact and not just giving his opinion. For example, a statement of fact would be calling someone a “known thief.” On the other hand, saying that a person “seems untrustworthy” would simply be an opinion.
Even so, opinions can rise to the level of being a false statement . To do so, they must “clearly and unmistakably” imply knowledge of underlying facts as the basis for the opinion.
Unprivileged publication to a third-party.
This element of defamation means that the publisher of the false statement did not have a privilege, or right, to make the statement to a third-party. The law provides many such privileges, such as
- A privilege for statements made in a court pleading or in testifying at trial.
- Statements made by an employer about an employee relating to the employee’s job performance.
- Situations where the publisher and third-party have a common interest.
Some privileges are absolute. A publisher who makes a statement that is subject to an absolute privilege cannot be sued for any reason.
Other privileges are qualified, meaning that the publisher cannot be sued as long as they were acting reasonably and in good faith (even if they were wrong).
Libel or slander resulting from negligence or greater fault.
In a defamation lawsuit, a plaintiff must show that the publisher was at least negligent. So, relevant matters include:
- The source of the information.
- Whether the publisher tried to verify it
- Whether the information was restricted to those who needed to hear it.
Damage to reputation.
Finally, a plaintiff in a defamation suit must prove injury to his reputation. A plaintiff proves injury in one of two ways.
First, there is a category of defamation known as “ per se defamation.” This means that the law presumes damage to reputation from certain types of false statements.
The five categories of per se defamation are words that:
- Suggest commission of some criminal offense involving moral turpitude and felony-level punishment.
- Impute the existence of some contagious disease.
- Claim the unfitness of an officer who holds an office of profit or gain.
- Allege a want of integrity or capacity in the conduct of a profession, trade or business.
- Impute a want of chastity in a female.
When the defendant has committed per se defamation, the plaintiff is not required to prove actual damages. Instead, the jury is allowed to make that decision.
In all other cases, however, a plaintiff has to actually prove damage resulting from the defamation. This can include loss of income, emotional distress, or other compensable injuries.
A word of caution.
Before you file a lawsuit alleging injury to your reputation, there is something to keep in mind. By making your reputation an issue in a lawsuit, you are opening the door to the defendant putting on a wide-array of information about you and your past.
If you claim you had a very good reputation, the other side will get to dredge up things that would otherwise be irrelevant. As result, if you are thinking about filing a defamation lawsuit, be very candid in disclosing your past with your attorney.
One last note.
You have heard the saying that “truth is an absolute defense” to a defamation lawsuit. That is true.
But, even if what somebody said about you is true, you may still have a cause of action for invasion of privacy. Specifically, you may have a claim for the public disclosure of private facts. Read more about invasion of privacy claims here.
If you are considering a defamation lawsuit, contact the Panter Law Firm for a consultation. 601-607-3156.
The post Libel and Slander- Two Forms of Defamation appeared first on Panter Law Firm, PLLC.
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