Defamation, Libel, and Slander: Key Elements of a Claim

Learn what a plaintiff needs to prove in order to hold someone liable for defamation.

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Defamation, libel, and slander: we have all heard of these legal terms, but what do they actually mean?

In general, a defamatory statement is a false statement of fact that is negligently or intentionally communicated or published to a third party, and that causes injury or damage to the subject of the statement. Libel and slander are different types of defamation. Libel is a written defamatory statement, and slander is an oral defamatory statement. Read on to learn more about the key elements of a defamation claim. (More: Get the Basics on Defamation Law.)

What is a Defamatory Statement?

A statement is defamatory if it tends to hold the plaintiff (the subject of the statement, who is bringing the lawsuit) up to scorn, hatred, ridicule, disgrace, or contempt, in the mind of any considerable and respectable segment of the community.

There are certain types of statements that are automatically considered defamatory in some states. These types of statements are often called defamatory "per se" Statements that are defamatory "per se" include statements that claim that the plaintiff:

  • has committed a serious, notorious, or immoral crime
  • has an infectious or terrible disease, or
  • is incompetent in his job, trade, or profession.

Defamation is a False Statement of Fact, Not Opinion

The most important aspect of a potentially defamatory statement is that it purports to be a statement of fact. Opinions are not defamatory. People have an absolute right to express whatever opinions they like about other people. Let’s look at some examples of facts versus opinions.

“I think that Joe is a jerk,” is an opinion. It’s not a polite opinion, but it is an opinion nonetheless. But “Joe stole $1,000 from his employer” is a statement of fact. If that statement isn’t true, it is defamatory. That is a false statement that clearly can cause injury to Joe. It could get him fired.

But what about something in between these two types of statement? What if someone says, “I think that Joe stole $1,000 from his employer.” If you qualify a statement of fact by saying “I think,” does that always turn a statement of fact into an opinion? The short answer is no. “I think that Joe is a jerk” is a pretty vague statement of opinion. But “I think that Joe stole money from his employer” implies that Joe may very well have stolen some money. The very fact that you said it implies that you may think that he did and that you want others to know that he might have stolen some money.

The bottom line -- depending on who you say it to and how you say it, implying that someone did something bad by phrasing it as an opinion can be defamatory. It's probably best to avoid saying these kinds of "gray area" things if you think that there is the slightest chance that the statement could get around.

The Statement Must Have Been Made to a Third Party

In order for a statement to be defamatory, it must have been made to a third party. A person can’t be defamed by a statement that is said or written only to him or herself.

Private Figures vs. Public Figures – Negligence vs. Intent

Simply because someone makes a defamatory statement does not automatically mean that the person will be liable for defamation. The person making the statement had to have acted inappropriately in some way. The standard of conduct required to hold a person liable for defamation depends on who was defamed.

If the person defamed was a private person, in most states, the person making the defamatory statement can only be held liable for defamation if he/she:

  • knew that the statement was false and defamatory, or
  • acted with reckless disregard of the truth or falsity of the statement in making the statement, or
  • acted negligently in failing to ascertain whether the statement was true or false before making it.

To act in reckless disregard of the truth or falsity of a statement means that the person making the statement had serious doubts as to the truth of the statement, but they went ahead and made it anyway.

If the person defamed was a public figure, the person making the defamatory statement can only be held liable for defamation if he/she knew that the statement was false or if he/she acted with reckless disregard as to the truth or falsity of the statement.

You can see that, ultimately, the difference between defamation of a public figure versus defamation of a private person is that a private person who claims defamation only needs to prove that the defamer acted negligently, while a public figure who claims defamation has to prove that the defamer acted intentionally or recklessly.

A good example of the difference between defaming a public figure versus a private individual is writing about that person in a blog post. If you claim that some private person was convicted of assault and battery twenty years ago, that person is probably going to win a libel case against you. But if you write that your senator was convicted of assault and battery twenty years ago, even if the senator is innocent, he/she would have to prove that you intentionally or recklessly lied. As long as you have some sort of defense -- like you saw that information on a semi-reputable web site, for example -- you have a reasonable chance of defending yourself against a libel claim from a public figure.

Damages for Defamatory Statements

A plaintiff in a defamation case is entitled to receive damages for any actual injuries that he/she incurred as a result of the defamatory statement. This includes lost earnings and lost earning capacity suffered as a result of the statement, as well as pain and suffering, impairment to reputation and standing in the community, personal humiliation, shame, and disgrace. Learn more about Damages in Personal Injury Cases.

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