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Defamation of Character

By Aaron Larson
March, 2005

Contents

The causes of action, defamation of character, slander, and libel are closely related. They involve the allegation that the defendant told untruths about the plaintiff, thereby causing the plaintiff to suffer harm. The precise elements of these causes of action vary from state to state.

Defamation, Libel and Slander

Generally speaking:

Defamation is the issuance of a false statement about another person, which causes that person to suffer harm.

Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation.

Libel involves the making of defamatory statements in a fixed or medium, such as a magazine or newspaper.

The typical elements of a cause of action for defamation are:

  1. A false and defamatory statement concerning another;
  2. The unprivileged publication of the statement to a third party;
  3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
  4. Damage to the plaintiff.

Within the context of defamation law, a statement is considered to have been "published" when it is made to a third party, meaning somebody other than the plaintiff in the malpractice action. The reference to "publication" refers to this communication to a third party, regardless of the means of communication, and does not mean that the defamatory statement has to be in print.

Damages in defamation actions are typically to the reputation of the plaintiff. Depending upon the laws of the jurisdiction, a plaintiff may be able to sustain a defamation action on the basis of mental anguish, even in the absence of any other claim of harm or damage.

While actions for defamation arose from common law traditions, most jurisdictions have passed statutes which modify the common law definitions of defamation, libel and slander. These statutes may change the elements of the cause of action, limit the circumstances under which an action may be filed, or modify the available defenses to an action for defamation. Some statutes even require that the defendant be given the opportunity to apologize before the plaintiff can seek non-economic damages.

Defamation Per Se

Most jurisdictions recognize "per se" defamation, in which the allegations made by the defendant are presumed to cause damage to the plaintiff. Normally in personal injury litigation, including actions for defamation, the plaintiff bears the burden of proof. Within the context of defamation, that means that the plaintiff must establish by a preponderance of the evidence that the defendant's statements were false, and that the defendant knew or reasonably should have known them to be false at the time the statements were made. Defamation per se provides a significant exception to that rule: Typically, where the statements made by the defendant constitute defamation per se, the defendant has the burden of proving that the allegations are true.

Typically, the following may consititute defamation per se:

Additionally, some states consider allegations that a married person was unfaithful to constitute defamation per se.

Defenses To Accusations of Defamation

Defenses to a lawsuit alleging defamation include:

Truth: Truth is considered to be an "absolute defense" to a defamation action. If the statements made by the defendant are true, a defamation action cannot succeed.

Privilege: Sometimes the defendant will be legally shielded from a defamation action. For example, statements made by witnesses and lawyers in court, by judges from the bench, and by legislators on the floor of the legislature during legislative proceedings, are considered to be "privileged", and will not support a cause of action for defamation no matter how false, reckless or outrageous the statements may be.

Opinion: It is said that a person's mere opinion, as opposed to an allegation of fact, cannot give rise to an action for defamation. It is important to note, though, that a statement which superficially appears to be an opinion may nonetheless contain a sufficient factual element to support a defamation action. The content and context of the statement will typically be considered in determining if the statement is actionable. A statement by an employer to the effect of, "Joe Smith is a pathological liar" is far less likely to be regarded as a mere opinion than a statement by a casual acquaintance. A statement by Joe Smith's psychotherapist to that effect, while possibly also violating duties of confidentiality, appears to be a medical diagnosis and thus, if false, may also support an action for defamation. Some jurisdictions have eliminated the distinction between fact and opinion in defamation actions, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.

Fair Comment: Where a statement is found to be a "fair comment on a matter of public interest", the statement will not ordinarily support an action for defamation. For example, if the mayor of a town is involved in a corruption scandal, the expression of an opinion that you believe the allegations are credible is not likely to support a defamation action against you.

Innocent Dissemination: Where the defendant transmits a message without awareness of its content, the defendant may be able to raise the defense of innocent dissemination. For example, the post office cannot be held liable for delivering a letter which has defamatory content, as it is unaware of the content of the letters it delivers.

Consent: Although unusual, in some circumstances a defendant may attempt to argue that the plaintiff consented to the dissemination of the allegedly defamatory statement.

A defendant may also attempt to illustrate that the plaintiff had a poor reputation in the community, in order to diminish any claim for damages resulting from the defamatory statements.

Public Figures and Defamation

In 1964, the U.S. Supreme Court decided a case entitled New York Times v Sullivan, and applied the First Amendment to hold that where a public figure attempts to bring an action for defamation, the public figure must prove an additional element: That the statement was made with "actual malice". "Actual malice" means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth.

Example: Ariel Sharon filed a lawsuit against Time Magazine over allegations relating to his conduct leading up to the massacres at the Sabra and Shatila refugee camps. Although the jury which decided the case concluded that the Time story included false allegations, they found that Time had not acted with "actual malice" and thus did not award any damages to Sharon.

It is not necessary to be a celebrity or political leader in order to be deemed a "public figure".

Limited Public Figure - A person may become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. Example: A woman named Terry Rakolta was offended by the Fox Television show, Married With Children, and wrote letters to the show's advertisers to try to get them to stop their support for the show. Her actions attracted media attention, and as a result Ms. Rakolta became the target of jokes in a wide variety of settings. As these jokes remained within the confines of her public conduct, typically ridiculing her as prudish or censorious, the jokesters were protected by Ms. Rakolta's status as a "limited public figure".

Involuntary Public Figure - A person can become an "involuntary public figure" as the result of publicity, even though the person did not want or invite the public attention. For example, people accused of high profile crimes may be unable to pursue actions for defamation even after their innocence is established, on the basis that the notoriety associated with the case and the accusations against them made them involuntary public figures.

Practical Considerations

If you are considering filing an action for defamation, you may wish to consider the following:

High Cost - Defamation actions tend to be costly to pursue. When brough against major media companies or publishers, or their employees, you should expect that the case will be capably defended by highly skilled defense attorneys.

Low Recovery - Defamation actions rarely result in sizeable awards of damages, and it is not unusual for the cost of pursuing a defamation action to exceed the ultimate recovery.

Publicity - The publicity associated with litigating a defamation claim can actually serve to expose a greater audience to the false allegations than they previously enjoyed. In the event that a newspaper or news show picks up the story of the defamation lawsuit, defamatory statements previously known to only a handful of people can suddenly become known by the entire community - sometimes the entire nation or world. Sometimes the media will do a poor job of subsequently covering the verdict, such that the public hears the defamatory allegations but doesn't learn that the plaintiff was successful in the lawsuit.

Difficulty of Proving Defamation - It is sometimes not possible for a plaintiff to establish all of the elements of a defamation action, even where the defendant's statements were entirely false. Most people who hear that a plaintiff lost a defamation action aren't interested in the nuance - they will instead assume that the loss means that the allegations which inspired the suit were true.

About The Author
Aaron Larson is a Michigan lawyer whose practice emphasizes civil appeals and litigation consulting. Copyright © 2005, Aaron Larson, all rights reserved.
Disclaimer
As legal advice must be tailored to the specific facts and circumstances of your case, information cannot substitute for the advice of qualified legal counsel. All information on this website is believed to be accurate as of the time it was authored. However, due to the possibility of changes in the law since that time, and as personal injury laws can vary significantly from state to state, you should verify any information you find on this site with a licensed legal professional in your state. All information on this site is presented on an "as is" basis. Your use of this site does not create an attorney-client relationship.