Defamation: Lawbreaking Or Free Speech?

Defamation is a statement that injures a third party's reputation. It is a civil action that covers false statements that cause reputational harm. Libel and slander are two types of defamation. Libel includes written or pictorial defamatory statements, while slander includes verbal defamatory statements. Libel is generally considered more harmful than slander as written statements are more permanent.

Defamation laws vary from country to country and state to state. In the US, defamation is not a crime in most states but is considered a tort, a civil wrong. The person defamed can sue the defamer for damages.

To prove defamation, the plaintiff must show that:

- The defendant made a false statement of fact about the plaintiff

- The statement was published, i.e., it was communicated to a third party

- The statement was harmful, i.e., it damaged the plaintiff's reputation

- The statement was unprivileged

Libel and slander

To prove defamation, a plaintiff must show four things:

• A false statement purporting to be fact
• Publication or communication of that statement to a third person
• Fault amounting to at least negligence
• Damages, or some harm caused to the reputation of the person or entity who is the subject of the statement

In the US, defamation is a tort, or civil wrong, in every state. A few states still have criminal defamation laws, but prosecutions are rare. Defamation laws aim to balance the interests of protecting people's reputations and allowing the free exchange of information, ideas, and opinions.

Defamation of character

Meaning and Examples

Defamation includes two main types: libel and slander. Libel refers to written or published statements, such as false claims made in newspapers, books, social media posts, articles, or emails. Slander, on the other hand, refers to verbal statements spoken to a third party, such as false claims made in speeches, broadcasts, interviews, or meetings.

How to Prove Defamation of Character

One of the challenges in defamation cases is balancing the right to free speech with an individual's right to protect their reputation. Courts must acknowledge legitimate criticism and opinion while also providing recourse for those who have been genuinely harmed by false statements.

To prove defamation, the plaintiff generally has to establish four things:

• Falseness: Evidence that shows the statement in question is objectively wrong.
• Publication: The defendant communicated the false statement to someone other than the plaintiff.
• Fault: The defendant acted negligently, at a minimum, such as failing to fact-check.
• Damages: The false statement caused actual harm, including damage to reputation, financial losses, or emotional distress.

As with most civil wrongs, the potential settlement largely depends on the extent of the damages suffered by the plaintiff. This includes compensatory damages, or actual damages, which reimburse the plaintiff for quantifiable losses. In some cases, particularly those involving libel per se (statements so egregious that harm is assumed), courts may also award assumed damages without specific proof of loss. Punitive damages may also be awarded in rare cases where the defendant's conduct was provably reckless or malicious.

The Defamation Lawsuit Process

• Consult a personal injury lawyer: While not necessary, hiring a personal injury lawyer with experience in defamation cases can improve your chances of a successful outcome.
• File the complaint: Your lawyer will draft and file a formal complaint with the appropriate court, outlining your allegations and the legal basis for your claim.
• Conduct discovery: Both parties gather information to build their cases through interrogatories, requests for production, depositions, and requests for admission.
• File any pretrial motions: Either party may file pretrial motions to resolve certain issues before the case goes to trial.
• Negotiate settlements: Settlement discussions often intensify after discovery and pretrial motions, as both parties have a clearer picture of their cases' strengths and weaknesses.
• Attend the trial: Trials can last from a day to several weeks, and you'll likely need to testify and recount your experience and the impact of the defamatory statement.
• Hear the verdict and prepare for appeals: If you win, the court will order the defendant to pay damages, but if you lose, you may need to discuss the possibility of an appeal with your lawyer.

Defamation and the First Amendment

The First Amendment to the U.S. Constitution ensures the right to free speech. However, defamation laws exist to protect individuals from reputational harm caused by false statements. This presents a unique challenge for courts, which must balance free speech with the potential harm caused by defamation.

The Delicate Balance

Defamation is a narrow category of unprotected speech, encompassing both libel (written statements) and slander (spoken statements). To prove defamation, a plaintiff must typically demonstrate that a false statement was made about them, communicated to a third party, and caused harm to their reputation.

While the First Amendment protects freedom of speech, it also acknowledges the need to address the harms caused by defamation. Courts must carefully balance protecting free speech with providing redress for those harmed by defamatory statements.

Landmark Cases

The U.S. Supreme Court's interpretation of defamation and free speech has been significantly influenced by landmark cases such as New York Times Co. v. Sullivan, Gertz v. Robert Welch, Inc., and Rosenblatt v. Baer. These cases have established important legal standards and shaped defamation law in the United States.

Actual Malice

In New York Times Co. v. Sullivan, the Supreme Court established the "actual malice" standard for defamation claims involving public officials or public figures. This standard requires plaintiffs to prove that defamatory statements were made with knowledge of their falsity or with reckless disregard for the truth.

The "actual malice" standard underscores the importance of robust public discourse while providing some protection for individuals subjected to false accusations. However, proving actual malice can be challenging for plaintiffs.

Free Speech and Defamation

Defamation lawsuits can threaten First Amendment rights by chilling speech on controversial subjects. The Supreme Court has ruled that a proper balance must be struck between protecting reputations and ensuring breathing space for free speech.

The interpretation and application of the First Amendment have significantly influenced legal doctrines and societal norms. While defamation is a narrow category of unprotected speech, it presents a complex legal challenge due to the delicate balance between free speech and the protection of individuals' reputations.

Defamation lawsuits

To prove prima facie defamation, a plaintiff must show four things:

• A false statement purporting to be fact
• Publication or communication of that statement to a third person
• Fault amounting to at least negligence
• Damages, or some harm caused to the reputation of the person or entity who is the subject of the statement

• The statement was privileged
• The statement was true
• The statement was an opinion, not a statement of fact
• Absolute privilege
• Qualified privilege
• Retraction of the statement

Defamation of public figures

Defamation is a statement that injures a third party's reputation, and it is a civil wrong (tort) rather than a criminal offence. It includes both libel (written statements) and slander (spoken statements). Libel is generally considered more harmful than slander as written statements are more permanent.

Public figures are people who have achieved fame or prominence within a society, and they can be categorised as all-purpose public figures or limited-purpose public figures. All-purpose public figures have positions of pervasive power and influence, and include politicians, celebrities, and athletes. Limited-purpose public figures have thrust themselves to the forefront of a particular public controversy to influence the resolution of the issue.

Public figures must prove a higher level of fault than private figures in defamation claims. They must show that the defendant acted with 'actual malice' in publishing a false statement, meaning that the defendant knew the statement was false or showed a reckless disregard for the truth. This is a more challenging standard to meet than for private figures, who only need to prove negligence.

Public figures can file defamation lawsuits, but they face increased burdens and difficulties compared to private individuals. They must specifically outline the reasons why the defendant acted with actual malice and how they suffered economic harm.

Frequently asked questions