Defamation

Defamation is the general term for a legal claim involving injury to one's reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another's reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).

Defamation in the United States is governed by state law. While the U.S. Constitution sets some limits on what states can do in the context of free speech, the specific elements of a defamation claim can -- and often do -- vary from state to state. Accordingly, you should consult your state's law in the State Law: Defamation section of this guide for specific information.

Generally speaking, a person who brings a defamation lawsuit must prove the following:

  1. The defendant published the statement. In other words, that the defendant uttered or distributed it to at least one person other than the plaintiff. You don’t need to be a media mogul to be a publisher. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If you publish something on the Internet, you can assume that this requirement has been met.

  2. The statement is about the plaintiff. The statement need not name the person explicitly if there is enough identifying information that those who know the person will recognize the statement as being about him or her. For more information, see the section on Who Can Sue For Defamation.

  3. The statement harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade. For more information, see the section on What is a Defamatory Statement.

  4. The statement was published with some level of fault. Fault requires that the defendant did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official. The level of fault that must be proven is discussed in the Actual Malice and Negligence section of the legal guide.

  5. The statement was published without any applicable privilege. A number of privileges may be available depending on what the defendant published and the source(s) he relied on for the information. For more information, see the section on Defamation Privileges and Defenses in this guide.

In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false. In cases involving matters of purely private concern, in many states the burden of proving truth is on the defendant. This is not to say that every detail you publish must be perfectly accurate to avoid liability. If you get a few minor details wrong, this will not necessarily negate the truth of what you say so long as the statement at issue is substantially true. See the section on Substantial Truth for more information.

Statements of pure opinion, which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion). 

Keep in mind that the republication of someone else's defamatory statement can itself be defamatory. In other words, you won't be immune simply because you are quoting another person making the defamatory statement, even if you properly attribute the statement to it's source. For example, if you quote a witness to a traffic accident who says the driver was drunk when he ran the red light and it turns out the driver wasn't drunk and he had a green light, you can't hide behind the fact that you were merely republishing the witness' statement (which would likely be defamatory).

On the other hand, if you repeat what someone else said or wrote in an official hearing or official document, there’s an important privilege that may protect you provided you attribute the information you gathered and are accurate in your reporting. See the section on Defamation Privileges and Defenses for information on this, and other, privileges.

There also is an important provision under section 230 of the Communications Decency Act that may protect YOU if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

Damages for Defamation

In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize "per se" defamation, where damage is presumed if the defamatory statement relates to one of the following subjects:

  • Impugns a person's professional character or standing;
  • States or implies that an unmarried person is unchaste (e.g., is sexually active);
  • States or implies that a person is infected with a sexually transmitted disease; or
  • States or implies that the person has committed a crime of moral turpitude (e.g., theft or fraud).

See the State Law: Defamation section of this guide for specific information on what each state recognizes. 

If a plaintiff succeeds in proving defamation, he or she is entitled to recover what is called compensatory damage, which is the payment of money to compensate the plaintiff for the wrong that has been done. This includes not only out-of-pocket expenses (e.g., doctor's bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant.

Note that some states require that a plaintiff must first ask the defendant to correct or remove the defamatory statement in order to be entitled to certain types of damages. See the section on Correcting or Retracting Your Work After Publication for more information.

Parallel Legal Claims Based on Allegedly False Statements

It is common for defamation plaintiffs to assert not only a claim for defamation, but also claims for infliction of emotional distress, interference with business relationships, etc., arising out of the same allegedly false statements. These parallel claims will ordinarily be subject to the same limitations, privileges and defenses as the main defamation claim. For more information, see our section on Other Falsity-Based Legal Claims.

 

Last updated on August 12th, 2008

   
 
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