The Key Elements of Defamation, Libel, and Slander Claims

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

Updated by Charles Crain, Attorney UC Berkeley School of Law
Updated 3/31/2023

Defamation, libel, and slander: most of us have heard these legal terms, but what do they actually mean? And what do you have to prove if you want to make a case that you've been defamed?

In general, a defamatory statement is a false statement of fact that harms your reputation. Libel is when the statement is written; slander is when it's spoken. In this article we'll go into more detail about the elements of a defamation claim, including:

  • how to tell the difference between defamatory statements of fact and legally-protected statements of opinion
  • the importance of demonstrating that the false statement harmed your reputation
  • the kinds of monetary damages you might seek in a defamation lawsuit, and
  • the different standards that apply depending on whether the defamed person is a public or private figure (or somewhere in between).

Defamation Is a False Statement of Fact, Not Opinion

The most important aspect of a potentially defamatory statement is that a reasonable person would think it's 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's an opinion nonetheless. On the other hand, "Joe stole $1,000 from his employer" is a statement of fact. (As we'll discuss more in the next sections, it's also the kind of harmful statement that would meet the other requirements to be considered defamation.)

But what about something in between these two types of statement? Does prefacing a statement with "I think" automatically make it a protected opinion? The short answer is no. Consider these statements:

  • "I think that Joe is a jerk."
  • "I think that Joe stole money from his employer."

Even though they both start with, "I think," only the first statement is clearly a protected opinion. Whether or not someone is a jerk is subjective, and there aren't any facts in the statement "Joe is a jerk" that you could try to prove or disprove. On the other hand, "Joe stole money from his employer" is a factual statement, and could be defamatory if there's no reason to believe that it's true.

The bottom line—false statements can be defamatory even if they start with "I think" or "In my opinion." Remember to focus on the overall content of a statement and whether a reasonable person would think it contains factual information.

What Kinds of False Statements Are Defamatory?

Not every false statement about a person is defamatory. A court will only decide that you've been defamed if it concludes that your reputation has been damaged by the false statement.

In many cases that means you'd have to gather and present evidence that the false statement hurt you—for example, by causing your business to lose customers, or by provoking people to harass you.

But certain types of statements can be libel or slander "per se." That means their negative meaning is so serious and obvious that a court will automatically assume that the statement has harmed your reputation. False statements that are typically defamatory per se include those stating that someone:

  • has committed a serious crime
  • has an infectious disease, or
  • is incompetent in their job, trade, or profession.

Also, since defamation laws are intended to protect people's reputations, a statement can only be defamatory if it's made to a third party. In other words, if the only two people who know about a statement are the person who made it, and the person it's about, then it can't be defamation. Your reputation can't be harmed by statements no one else knows about.

How Do You Calculate Damages In a Defamation Case?

Like in any personal injury case, a successful defamation plaintiff is entitled to money that will compensate them for the harm ("damages") they've suffered.

Your damages in a defamation case could include:

  • Your concrete economic losses. For example, if the defamatory statements harmed your business you'd be entitled to compensation for your lost profits.
  • Your intangible (or "non-economic") losses. This would include money to compensate you for pain and suffering, impairment to reputation and standing in the community, personal humiliation, shame, and disgrace.

In cases where a defamation defendant's conduct was particularly terrible, a plaintiff might also get punitive damages. These are designed to punish the person who made the defamatory statements and to deter other people from engaging in the same behavior.

Is It Harder for Public Figures to Win Defamation Cases?

Public figures must meet a higher standard to win a defamation case. That's because the legal system wants to err on the side of allowing public discussion, and doesn't want people to worry about being sued just for criticizing politicians and other powerful people.

Consider these two situations:

  • A former municipal employee accuses the mayor of your town of embezzling money from the local government.
  • One of your coworkers sends an email to a company mailing list accusing another coworker of stealing money from your company.

These are similar accusations, but even if the mayor is innocent a successful defamation lawsuit would be much more difficult.

If you're a private citizen, you can win a defamation case even if all you can prove is that the person who made defamatory statements about you acted negligently (in legal terms, "negligent" means something similar to "careless" or "sloppy").

The mayor's defamation claim, on the other hand, would be considered using the "actual malice" standard. Public figures can only win defamation cases if they can prove that the person who made the statements either knew that the statements were false, or acted with "reckless disregard" for whether they were false or not.

Keep in mind that, in many states, you can become a "public figure" without being a politician or a celebrity. If you become involved in a public debate or controversy you could become what's known as a "limited-purpose public figure." The negligence standard would still apply to statements about your private life. But, if you wanted to sue someone over false statements related to the public controversy, a higher standard would apply.

Learn More About Defamation Law

If you think you've been defamed—or if someone is accusing you of defamation—you can help yourself by reading more about defamation, libel, and slander law. You can also learn about the procedure and timeline for a typical defamation trial, and about the defenses that might apply if someone says you defamed them.

Defamation cases are often emotionally charged, and they also involve legal and constitutional issues (like First Amendment protections) that rarely come up in other kinds of personal injury cases. If you have specific questions about a defamation matter you'll benefit from consulting with an attorney who specializes in that area of law. You can learn more about what to ask an attorney before deciding if they're the right fit for your situation.

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