It is not unusual for attorneys to receive inquiries about defamation actions from people who are in conflicts with neighbors or other members of their communities, and have become the subjects of vicious lies. The area of law most implicated by that type of conduct is "defamation of character", a cause of action which is generally defined to include "libel" and slander".
Defamation is the issuance of a false statement about another person, which causes that person to suffer harm. At common law, defamation actions were divided into two categories, libel and slander.
Libel vs. Slander
Libel and slander both involve the making of false statements, but the term "libel" refers to written defamation, while "slander" refers to non-written defamation:
- 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 printed or fixed medium, such as a magazine or newspaper.
Elements of Defamation
Typically, the elements of a cause of action for defamation include:
- A false and defamatory statement concerning another;
- The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
- If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
- Damage to the plaintiff.
In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.
Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.
Defamation per Quod
In most defamation cases, the defamatory character of the allegedly defamatory statement is not apparent from the statement alone, and it is necessary to introduce additional facts to establish that defamation occurred. When the defamation is not obvious from the statements on their face, the plaintiff must both prove all of the elements of a defamation case, including damages.
Defamation Per Se
Most jurisdictions also recognize per se defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:
- Attacks on a person's professional character or standing;
- Allegations that an unmarried person is unchaste;
- Allegations that a person is infected with a sexually transmitted disease;
- Allegations that the person has committed a crime of moral turpitude;
When damages are presumed, the plaintiff can try a case to verdict without presenting any evidence of actual damages. The plaintiff typically will nonetheless attempt to prove damages at trial, as otherwise the jury may conclude that no significant injury resulted from the defamatory statement and return a verdict for nominal damages (e.g., $1).
While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.
Many modern defamation statutes eliminate the distinction between libel and slander, and thus no longer treat defamatory statements differently depending upon whether or not the statements were made in writing.
The most important defense to an action for defamation is "truth", which is an absolute defense to an action for defamation.
Another defense to defamation actions is privilege. For example, statements made by witnesses in court, arguments made in court by lawyers, statements by legislators on the floor of the legislature, or by judges while sitting on the bench, are ordinarily privileged, and cannot support a cause of action for defamation, no matter how false or outrageous.
A defense recognized in most jurisdictions is opinion. If the person makes a statement of opinion as opposed to fact, the statement may not support a cause of action for defamation. Whether a statement is viewed as an expression of fact or opinion can depend upon context - that is, whether or not the person making the statement would be perceived by the community as being in a position to know whether or not it is true. If your employer calls you a pathological liar, it is far less likely to be regarded as opinion than if such a statement is made by somebody you just met. Some jurisdictions have eliminated the distinction between fact and opinion, and instead hold that any statement that suggests a factual basis can support a cause of action for defamation.
Fair Comment on a Matter of Public Interest
A defense similar to opinion is fair comment on a matter of public interest. If the mayor of a town is involved in a corruption scandal, expressing the opinion that you believe the allegations are true is not likely to support a cause of action for defamation.
Lack of Damages
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.
A defendant who transmitted a message without awareness of its content may raise the defense of innocent dissemination. For example, the post office is not liable for delivering a letter which has defamatory content, as it is not aware of the contents of the letter.
An uncommon defense is that the plaintiff consented to the dissemination of the statement.
Under the First Amendment of the United States Constitution, as set forth by the U.S. Supreme Court in the 1964 Case, New York Times v Sullivan, in which 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". In translation, that means that the person making the statement knew the statement to be false, or issued the statement with reckless disregard as to its truth. For example, Ariel Sharon sued Time Magazine over allegations of his conduct relating to the massacres at the Sabra and Shatila refugee camps. Although the jury concluded that the Time story included false allegations, they found that Time had not acted with "actual malice" and did not award any damages.
The concept of the "public figure" is broader than celebrities and politicians. A person can become an "involuntary public figure" as the result of publicity, even though that 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 turned them into involuntary public figures.
A person can also become a "limited public figure" by engaging in actions which generate publicity within a narrow area of interest. For 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. As a result of her actions, 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 making fun of her as being prudish or censorious, they were protected by Ms. Rakolta's status as a "limited public figure".
While people who are targeted by lies may well be angry enough to file a lawsuit, there are some very good reasons why actions for defamation may not be a good idea.
The publicity that results from a defamation lawsuit can create a greater audience for the false statements than they previously enjoyed. For example, if a newspaper or news show picks up the story of the lawsuit, false accusations that were previously known to only a small number of people may suddenly become known to the entire community, nation, or even to the world. As the media is much more apt to cover a lawsuit than to cover its ultimate resolution, the net effect may be that large numbers of people hear the false allegations, but never learn how the litigation was resolved.
Another big issue is that defamation cases tend to be difficult to win, and damage awards tend to be small. As a result, it is unusual for attorneys to be willing to take defamation cases on a contingent fee basis, and the fees expended in litigating even a successful defamation action can exceed the total recovery.
Another significant concern is that, even where the statements made by the defendant are entirely false, it may not be possible for a plaintiff to prove all of the elements of defamation. Most people will respond to news that a plaintiff lost a defamation lawsuit by concluding that the allegations were true.
In other words, the plaintiff in a defamation action may be required to expend a considerable amount of money to bring the action, may experience significant negative publicity which repeats the false accusations, and if unsuccessful in the litigation may cement into the public consciousness the belief that the defamatory accusations were true. While many plaintiffs will be able to successfully prosecute defamation actions, the possible downside should be considered when deciding whether or not such litigation should be attempted.