Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation, although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature.
Generally speaking, a person who brings a defamation lawsuit must prove the following elements:
- The defendant published the statement. In other words, the defendant uttered or distributed the statement to at least one person other than the plaintiff. You do not need to be a media mogul to be a publisher. There is no requirement that the statement be distributed broadly, to a large group, or even to the general public. If you publish something on the Internet, you can assume that this requirement has been met.
- The statement is about the plaintiff. The statement need not name the person explicitly if there is enough identifying information that those who know the person will recognize the statement as being about him or her.
- The statement harmed the reputation of the plaintiff, as opposed to being merely insulting or offensive. Generally speaking, a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him in the esteem of his peers, causes him to be shunned, or injures him in his business or trade.
- The statement was published with some level of fault. Fault requires that the defendant did something he should not have done or failed to do something he should have. Depending on the circumstances, the plaintiff will either need to prove that the defendant acted negligently, if the plaintiff is a private figure, or with actual malice, if the plaintiff is a public figure or official.
- The statement was published without any applicable privilege. A number of privileges may be available, depending on what the defendant published and the source(s) he relied on for the information.
In cases involving public officials, public figures or matters of public concern, a plaintiff must prove that the statement was false. In cases involving matters of purely private concern, the burden of proving truth is on the defendant. This is not to say that every detail you publish must be perfectly accurate to avoid liability. If you get a few minor details wrong, this will not necessarily negate the truth of what you say so long as the statement at issue is substantially true. Statements of pure opinion which cannot be proven true or false, cannot form the basis of a defamation claim (e.g., a statement that Bill is a jerk, is clearly a statement of opinion)
In most states, the plaintiff must also prove that the defamatory statement caused him or her actual damage. Actual damages include such things as the loss of a job because of the defamatory statement, but can also include mental anguish or suffering associated with the defamation. Some jurisdictions also recognize “per se” defamation, where damage is presumed if the defamatory statement relates to one of the following subjects:
- Impugns a person’s professional character or standing;
- States or implies that an unmarried person is unchaste (e.g., is sexually active);
- States or implies that a person is infected with a sexually transmitted disease; or
- States or implies that the person has committed a crime of moral turpitude (e.g., theft).
If a plaintiff succeeds in proving defamation, he or she is entitled to recover what are called compensatory damages, which compensate the plaintiff for the wrong that has been done. These damages can include not only out-of-pocket expenses (e.g., doctor’s bills), but also personal humiliation, mental anguish and suffering, and lost wages and benefits if the defamation caused the plaintiff to lose employment. In limited circumstances, a plaintiff may also be able to recover punitive damages, which are awarded in addition to compensatory damages and are intended to punish the defendant.