Defamation is a catch-all term for any statement that hurts someone’s reputation, that can be divided into “slander” which are spoken statements, and “libel” for written. A person who believes he or she has been defamed by another can sue the person who did the defaming for damages.
Libel law varies by state, but overall serve to balance the competing interests of providing redress for people that have been wronged and allowing people to speak freely and avoiding any “chilling effects.” When people self-censor ideas or speech fearing they will be prosecuted or sued, it is known as a “chilling effect.” While individual requirements of libel law vary, there are usually five common elements that must be proven to successfully sue for libel. The plaintiff usually has to show there is a statement that is (1) identifies the plaintiff and is (2) published, (3) false, (4) injurious, and (5) unprivileged and (6) made with a requisite level of fault.
Above all, there must be a statement. It can be spoken, written, gestured, or depicted in a picture. Key when filing a suit is identifying specifically what statements are defamatory. It is poor legal strategy to point to an entire blog post, news article, or Facebook rant as defamatory. The plaintiff should pick out exact phrases that are defamatory.
First, the statement must identify the plaintiff. If a statement describes a group of people, for example, that group must be small enough that a reader would know it included the plaintiff.
Second, it be published. Libel law has a unique meaning of the word “published,” not the common meaning written or printed in a book. A third-party, other than the person making the statement and the person being defamed, must become aware of the statement. This can include social media, radio, speeches, written gossip, or the traditional magazines, books or newspapers.
Third, the statement must be false. Statements are not reputationally damaging unless they are provably false. This distinction usually exempts opinion and hyperbolic speech from being actionable under the law. Saying, for example, that Sharon makes the worst cookies at the PTA bake sale, while unkind, is not defamatory as an opinion is not provably false or true.
Fourth, the statement must be harmful or injurious. True to the stated purpose of defamation law, to correct injuries caused by speech, plaintiffs in a defamation case must show their reputations were actually hurt by the false statement. Some states have determined that certain statements defamatory per se, meaning a plaintiff does not have to show they were harmed because the legislature has decided that certain statements are inherently harmful. Statements that are defamatory per se include statements that say you have or had a sexually transmitted disease, you are guilty of sexual misconduct, you committed a crime, or you improperly ran a business, either fraudulently or incompetently.
Fifth, the statement must be unprivileged. Privileged statements cannot be grounds for defamation, even if they are provably false. Privileged statements include witness testimony, or statements made by lawmakers in legislative chambers or in official materials. Why this exception? Legislatures have generally found that the risk to suppressing free speech is too great even if what is said is false.
Finally, the plaintiff must show the defendant acted with a degree of fault. Public figures have a harder time proving this than private citizens. In New York Times v. Sullivan, the Supreme Court ruled that in order for a public official to be successful in proving a libel claim the statements must have been made with “actual malice.” This concerns the state of mind of the alleged defamer, it must be shown that the statements were made with reckless disregard for the truth, that the defamer had doubts to the truth of the statement but did not check further before publishing. The Court carved out this distinction with the principles of free speech in mind. They reasoned that public officials, those elected for or appointed to governmental office, assume the risk of things being said about them for the benefit of the larger marketplace of dissenting political speech. Public figures can also be celebrities or those who are influential. Private persons, by contrast, only need to show that the statement was made negligently.
When contemplating filing suit for libel, or when named as a defendant, contacting an attorney versed in your state’s tort of libel is essential to truly understanding your chances of success.
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