Every person in the United States has the First Amendment right to freedom of speech without fear of litigation. Free speech is a principle that reinforces other fundamental human rights and allows a society to develop and progress. The free exchange of ideas is the cornerstone of any healthy society, even though all ideas can potentially give rise to an offense.
Freedom of speech is not an unrestricted right, however. Every person has the right to protect their reputation, and this right can limit another person’s freedom of speech. Defamation Law is the area of the law that focuses on balancing these competing interests.
These laws protect people from the negative consequences of an untrue statement that someone made against them. “Defamation of character” is an umbrella term that describes a published statement intended to hurt another person’s reputation.
Defamation Law is Civil Law
Defamation is not a crime. The person who published a defamatory statement is a defendant in a civil case, and not an accused in a criminal case. When someone suffers damages as a result of defamation, they have to file a lawsuit as a plaintiff in court.
However, continuous defamation can constitute a crime like contempt of court, harassing, or stalking under state law.
Each State Has Their Defamation Laws
There are two primary sources of defamation law, namely common law and statutes. Each state drafts its defamation laws, but the principles of defamation law are very similar in every state.
Types of Defamation
Defamation is communication that can harm another person’s reputation. There are two types of defamation, namely libel and slander. Libel is a defamatory statement that someone makes in writing. Slander is a defamatory statement that someone utters orally.
The law generally regards libel to be worse than slander. Written defamation can be published or shared, and has the potential to have a longer-lasting and more detrimental effect than slander.
Another type of defamation is seditious libel. According to the Sedition Act of 1798, it is a crime to publish a false statement about the government, president, or congress. The Supreme Court later amended this legislation to the effect that a statement is only libel if the person who made it knew that it was false.
Elements of Defamation
The legal definition of defamation differs from state to state. However, there are generally accepted elements or requirements that a statement has to meet before constituting defamation. If someone made an offending statement that concerns you, you have to prove that:
- The person made a statement,
- The statement was published to a third party,
- You suffered damages because of the statement,
- The statement was false,
- The statement was unprivileged
The onus is on the plaintiff to prove that all the above elements are present. If one or more of these elements are not applicable, the claim for defamation will not be successful.
A statement that holds the plaintiff up to ridicule, hatred, or disgrace can be made in any form. A person can make a defamatory statement by speaking, writing, picturing, or gesturing it.
Traditionally, statements in writing are easier to prove than oral statements, and the courts tend to view them in a more serious light. In recent years, however, spoken statements are frequently recorded and shared via online platforms. Courts consider them to be on par with written statements.
Published to a Third Party
“Published to a third party” means that someone who is not the plaintiff heard or saw the alleged defamatory statement.
For example, if Person A writes down a false statement about Person B and locks it away in his cupboard, the statement is not defamatory. If Person A shows the statement to Person B before throwing it away, the statement is also not defamatory. The statement concerns Person B, and no third party saw it.
If Person A reads the statement loudly where someone else can hear it, however, the publication element is present. Examples of publishing include:
- A post on social media
- A television or radio broadcast
- Statements made during public speeches
- Publications in newspapers, books, and magazines
- Loud conversation
The Statement Caused Damages
For a statement to be defamatory, it has to cause the plaintiff harm. There must be a causal connection between the statement and a negative consequence. If the plaintiff lost his employment shortly after the defendant made the statement, the plaintiff must show that the termination was the result of the statement and not another reason, for example, unprofessional conduct.
Damages can take any form, including physical pain, emotional trauma, or financial costs. The plaintiff only has to show that they suffered losses in one of these forms. There is a detailed discussion of damages below.
The plaintiff doesn’t have to prove damages in the special case of defamation per se. The principles of defamation law recognize that certain categories of false statements can be so harmful that they are considered as defamatory per se. According to common law tradition, the damages incurred as the result of these statements are presumed, and the plaintiff doesn’t have to prove that they exist.
The categories of statements that can automatically constitute defamation include:
- Allegations that are “injurious to another in their trade, business, or profession”
- Claims of a “loathsome disease”
- Accusations of “unchastity” (usually only in unmarried people and women)
- Allegations of criminal activity (sometimes only crimes of moral turpitude)
States that don’t recognize defamation per se include Arizona, Missouri, and Tennessee.
The Statement is False
It is not against the law to make a true statement about someone else, and the truth is one of the defenses against defamation. For example, if Person A makes a mean or disparaging statement about Person B that causes him to lose his job and income, the statement will not be defamatory if it is true.
To be successful with a defamation claim, the plaintiff has to prove that the defendant’s statement purports to be one of fact but is objectively false. As a result, opinions are not defamatory, and people have the right to express their views about other people.
For example, a negative product review on an online shopping platform is not defamatory, even if it is a mean statement that third parties can see and that harms the seller’s business. In the same way, Person A can tell a third party that they think Person B is a terrible person.
The statement that Person B is a terrible person is not a statement of fact, but a subjective view. This opinion is also based on disclosed and non-defamatory facts. Consequently, this statement is not defamatory.
According to Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339, if the publisher presents their statement as an opinion, however, it does not automatically make them immune from a defamation lawsuit. Consider this statement: “I am personally of the opinion that Person A is stealing money from Company X.”
This statement appears to be an opinion, but it contains undisclosed or implied facts. Expressing an opinion is defamation if:
- The opinion is based on a defamatory fact, and
- The third party that receives the statement reasonably believes the defamatory fact.
The Statement is not Protected by Privilege
The plaintiff must prove that the defendant’s statement is not privileged. A privileged statement is protected for policy reasons and cannot be the basis for a defamation claim. There are two types of privilege, namely absolute privilege, and qualified privilege.
A person with absolute privilege is immune from a defamation lawsuit. This type of privilege applies to statements that the publisher made:
- As a high government official
- As a legislator during a legislative debate
- To his or her spouse
- During a political broadcast
- During judicial proceedings
An example of absolute privilege is when a person gives testimony as a witness in court. Any false statements they make in the witness box that causes harm is protected from civil liability for defamation.
Qualified privilege is when a person is immune to defamation claims. Statements that are protected by qualified privilege include:
- Statements that someone publishes in situations of self-defense or to notify others of potential harm
- Citizen testimony in legislative proceedings
- Statements made by a person’s former employer to a future employer
- Book or film reviews as fair criticism
- Statements in government reports
- Statements made by lower-level government officials
If qualified privilege applies, the person who sues for defamation must prove that the defendant acted intentionally and with malice to be successful.
Intent and Negligence
When a person publishes a false statement to a third party that is not privileged, and that causes damages, they are not automatically liable for defamation. A component of a defamation case that determines liability is the intent.
The person making the statement should subjectively know that the statement is untrue or they should make the statement without regard for the truth. If the statement defames a private person, a statement made in negligence is also sufficient to establish a case for defamation.
Negligence is when a reasonable person would have taken steps to determine whether or not a statement is accurate before making it. Another requirement of negligence is that the person who made the statement didn’t take these steps.
Public Officials and Celebrities
A person that is liable for defamation can be in one of three subjective frames of mind when they make their false statement:
- They know that the report is false and defamatory,
- They have a strong suspicion that the statement may not be correct, but they recklessly continue publishing the statement, or
- They don’t know if the statement is accurate, and they negligently fail to ascertain if the statement is accurate before publishing it.
If the person the statement defames is a private person, any of these subjective frames of mind is sufficient to establish liability. However, if the defamed person is a public figure like a celebrity or a political figure, the person who made the statement in negligence is not liable. The public figure who sues for defamation has to prove that the statement was made intentionally or recklessly.
It is easier for a private person to successfully claim defamation than it is for a public figure. A private person only has to prove that the publisher acted negligently. A public figure has a higher burden of proof.
Damages for Defamation
When a person sues for defamation, they bring a civil suit in a state court and allege that they suffered damages because of a false statement that the publisher made. A defamation lawsuit seeks monetary damages for the harm that the statement caused. Injury caused by defamation include:
- Pain and suffering
- Damage to the plaintiff’s reputation
- Lost wages
- Loss of the plaintiff’s ability to earn a living
- Personal emotional reactions like anxiety, humiliation, and shame
Defamation Law is Evolving
The development of the internet and social media in recent years has changed the way people communicate, and it will continue to do so. Many people can remember a time when the only publication mediums were print media, radio, and television.
Today, online reviews, uploads on social media, and other modern forms of communication have to be integrated into defamation law to ensure that it stays relevant and enforceable. A social media post can be defamatory if all the elements are present. Indeed, it is easier than ever to post a defamatory statement.
Repeating a Defamatory Statement
What happens if a person repeats a defamatory statement that someone else published? Repeating a defamatory post is something that can easily occur on social media.
According to Williams v. Fulks, 113 Ark. 82, 167 S.W. 93 (1914), a person repeating a defamatory statement is not liable for the harm resulting from the statement if:
- The person is privileged to repeat the statement, for example, when a person testifies in a court of law and
- If the originator of the defamatory statement authorized the repetition.
If a person repeats a defamatory statement without privilege and authorization, however, they can be liable for damages.
For example, Person A has a defamatory statement on record but doesn’t publish it. Person B finds the statement and publishes it without A’s consent, and it results in damages for Person C. In the above case, B would be liable for the damages, but not A.
Who Can Claim for Defamation?
Individuals and legal entities can file a claim for defamation if they believe that the statement is about them. A person cannot file a defamation claim on behalf of unincorporated associations or deceased people. Central and local governments can also not file a claim for defamation against another party.
The Defenses to a Defamation Claim
A defendant to a defamation claim has several defenses, even if the plaintiff has prima facie proof that all elements of defamation are present.
The defendant can argue that the statement was an expression of an opinion that an honest person with all the relevant facts could have had at the time of publication.
Truth is an absolute defense to any defamation allegation. If the statement is true, the plaintiff has no case. If a public figure brought the claim, the defendant only has to prove that they were negligent in determining if the statement was false.
A person who repeated a defamatory statement can, in their defense, prove authorization from the originator.
If the statement is protected by absolute or qualified privilege, the defamer can offer proof thereof as a defense.
Retracting a Defamatory Statement
A plaintiff who believes that a statement defamed them can request a retraction of the statement before proceeding with the lawsuit. This request must be made within a reasonable period after the publication of the statement.
The person who published the statement can issue a “frank and full” retraction of the defamatory statement in response to the request.
A defamatory statement retraction can serve as a defense if the person proceeds with the claim. A person retracts their statement by informing their audience of the factual errors that affect the main point of their statement.
Retracting a statement does not necessarily mean that the defamer will escape liability, however. If the plaintiff suffered damages, the defamer might have a reduced liability after retraction. The circumstances of each case are significant in determining the defendant’s liability.
Every person has the right to freedom of speech and to openly express ideas and opinions. However, this right is limited by defamation law. If a person publishes a false and harmful statement about another person to third parties, they are eligible for the damages that the statement caused.
Damages as the result of defamation include pain and suffering, emotional trauma, financial loss, and damage to a person’s reputation.
Defamation law allows people who suffered these damages as the result of false statements to find an appropriate remedy.