The term “defamation” refers to a person making false and malicious statements about someone else, either through written or spoken word. As an area of law, defamation works to remedy situations in which someone’s words cause harm to someone else’s livelihood or reputation. A person who has experienced defamation, or has been defamed, may sue the person responsible for the defamation in a civil court.
Defamation of character is used as an umbrella term for any statement that damages another person’s reputation. In the United States, laws are in place which intend to prevent people from ruining other people’s lives when it comes to career, reputation, and personal life. However, citizens have the right to speak freely about one another without fearing that they are going to get pulled into court for litigation. Defamation laws attempt to balance this freedom of speech.
What Is the Difference Between Libel and Slander?
Written defamation, such as defaming someone in a book or newspaper, is referred to as libel. This definition of libel can also extend to cover businesses, not just individuals. Additionally, libel can refer to visual depictions, and published statements that are made on radio, audio, and video.
Libel is considered to be damaging to a person’s reputation due to the fact that the defaming information can be read by large amounts of people. In order to recover for libel, the false statement must actually harm the reputation of the other person, as opposed to being merely insulting or offensive.
Spoken defamatory words are called slander. Slander involves the oral “publication” of defamatory remarks that are heard by a third party. The distinction between libel and slander lies in the method of publication. Recently, it has been determined that there are not many differences between the two terms. In fact, the Illinois Supreme Court explained in the Bryson v. News America Publication, Inc. case that “libel and slander are now treated alike, and the same rules apply to a defamatory statement regardless of whether the statement is written or oral.”
Why Does the Distinction Matter?
Because defamation in the form of libel is generally more injurious than that of slander, courts typically look at libelous cases as more serious. In some cases, the distinction between libel and slander is less clear. If the defamation is more permanent, such as an article or a recording, it is more likely that a court will consider it libel.
This distinction matters because in many cases, it comes down to damages. If a plaintiff is able to prove that a statement was libelous “on its face,” damages are presumed. Proving actual specifics and amount of loss (special damages) is not necessary. However, if the statement was slanderous, it is very likely that the plaintiff will have to prove special damages.
Generally speaking, libel and slander are civil claims. Some states do recognize an action for criminal defamation. Most state criminal libel statutes recognize statements that cause breach of the peace, and may criminalize published statements that are dishonest or expose someone to hatred, mockery, and contempt.
Libel claims may be brought by living persons, as well as legal entities, such as corporations and unions. This definition extends to any entity considered to be a “person” under the law. Governmental entities cannot bring a lawsuit for libel, but government officials can if statements were directed towards the official individually.
Proving Defamation Through Libel or Slander
States laws regarding proving defamation through the legal theories of libel and/or slander vary. However, there are some general rules that a person must prove in order to show that a statement made was in fact defamatory. Again, the false statement must actually harm the reputation of the other person, as opposed to being merely insulting or offensive. A statement may be considered defamatory if the statement was:
- Published: Under legal definitions, “statement” refers to something that can be spoken, written, pictured, or gestured. A published statement means that a third party saw or heard the statement, but it does not necessarily mean that it was printed in a book or magazine. This definition includes radio, speeches, television, social media, or even loud conversation;
- False: Defamatory statements must be objectively false. This is because true statements are not considered to be damaging to others.;
- Injurious: The plaintiff must prove that the statement harmed them in some way. An example of this would be if they lost work because of the statement, or they were shunned and/or harassed by neighbors because of defamatory remarks; and
- Unprivileged: The defamatory statement must also be unprivileged. What this means is that in some circumstances, such as witnesses testifying in court or lawmakers making statements in the legislative chamber, they are not to be held liable for any statements that would otherwise be defamatory.
To prove the above criteria, it is essential that you document all of the details if you think a person has committed libel against you.
Common Employment Situations Where Defamation Claims Arise
Defamation can occur in employment situations. A few examples of this could include:
- Job References: Employers cannot be untruthful when discussing their former employees. Although they may speak candidly of a former employee, they should not make untrue remarks on a person’s character or performance. This would injure the employee’s future employment. An example of this would be if an employer falsely portrayed a former employee as an individual who discriminated against a protected class of people;
- Termination of Employment: An employee’s termination or resignation should remain a confidential matter. Employers should not discuss or criticize an employee in the presence of others; meaning, they should not discuss the reasons why an employee was terminated, or resigned, with other employees; and/or
- Business Communications: Employers may be held liable for their employees who accidentally make false statements regarding business matters, or about other people. This is because while operating in an employee capacity, the employee is representing the company. Should they make a defamatory statement, their employer could be vicariously liable.
What Can an Employer Do to Prevent a Libel or Slander Lawsuit?
In order to prevent a libel or slander lawsuit, employers should establish policies and procedures regarding:
- Providing job references;
- The termination or resignation of employees; and,
- How business communications are to be conducted.
An employment attorney can assist in the creation of such policies and procedures.
Do I Need a Skilled Libel and Slander Attorney?
If you are dealing with defamation, such as libel and/or slander, you should consult with a skilled and knowledgeable personal injury lawyer. An experienced personal injury attorney can inform you of your rights, and determine whether any defenses are available to you based on the specifics of your case, if needed. Additionally, the attorney can help you compile evidence supporting your claim, and can also represent you in court.