What is Defamation?
In legal terms, defamation is any statement that is untrue and harmful to someone’s reputation. There are two types of defamation:
- Libel. Libel is a written statement, which includes anything written in hard copy such as a newspaper or magazine, as well as online or digital published statements.
- Slander. Slander is spoken defamation, including a statement made in a speech, on television, on the radio, or in an online video or podcast.
How is Defamation Different from an Opinion?
An opinion can be damaging, but it is not the same thing as defamation. The First Amendment right to free speech protects opinions but not defamation. You can not sue someone for stating or publishing an opinion. What distinguishes defamation from free speech-protected opinion is the ability to prove or disprove it.
Defamation involves a false statement that can be proven to be untrue. An opinion cannot be proven or disproven. For instance, if you say someone you know is a bad person who is likely to commit a crime, that is an opinion. If you say that they stole a car, the statement could be defamation if proven false.
How Can I Prove Defamation?
You can sue someone for defamation, but you must meet the burden of proof:
- A false statement is given as true.
First, the defendant must make a statement that they claim to be true, and that is provably false. If it is true, no matter how damaging, the statement is not defamation.
The false statement must be communicated to a third party or published in some way. This is not limited to traditional publishing. It cannot simply be you and the defendant hearing or seeing the statement.
- The statement injures your reputation.
You must show that the false statement has been measurably harmful to your reputation, for example, if you lost business or have been harassed by others because of the falsehood.
- The defendant is unprivileged.
Certain people in specific situations are considered privileged and cannot be sued for defamation. A witness in a trial, for instance, is privileged.
Does Defamation Have to Be Intentional?
A person who defames another often does so knowing that it will cause harm. They intentionally publish or speak a false statement to damage someone’s reputation.
In most cases, a defamatory statement does not have to be intentional for it to cause harm or result in damages. Someone may also make a defamatory statement negligently. For instance, consider news reports that refer to suspects as having allegedly committed a crime. The word allegedly is important to use to avoid negligently stating that someone committed a crime when they did not.
Defamation of Public Figures
There is an exception to the negligence argument, which involves public figures. Defamatory statements against public figures carry a higher burden of proof. A public figure defamed by someone cannot simply show negligence. They must prove the person who made the statement acted intentionally or recklessly (actual malice).
What Kinds of Damages Does Defamation Cause?
With physical personal injury cases, it is easier to see the harm. The damages clearly involve monetary harm, like medical bills or even lost wages. These cases also include non-economic damages for things like emotional suffering after a major injury or loss of a relationship. With a defamation case, the harm caused by a false statement may not be as obvious. Some examples of possible damages from defamation include:
- Losing a job or business over a false statement
- Losing earnings from a job
- Non-economic damages for emotional suffering
Some states do not allow for recovery of non-economic damages in cases of defamation, except for specific circumstances. When the defamatory statement is spoken (slander), you must prove special damages. If the defamatory statement is written (libel), damages are presumed.
In some circumstances, you may be able to claim ‘per se’ damages. These are damages assumed to have resulted from the false statement based on its content:
- False claims about your professional standing or character
- Implying or stating that an unmarried person has been sexually active
- Claiming someone has a stigmatized disease, such as a sexually transmitted infection
- Stating that someone has committed a crime
Defamation and Social Media
The rise of social media sites like Facebook, Twitter, and Instagram means that anyone can publish just about anything for a third party to read. The possibility of defamatory statements causing harm increases with the number of posts on the sites.
It is possible to sue for defamation for something a person says about you on their social media page. All the same elements apply when it comes to proving negligence or intentional wrong. People must be careful about what they say and publish with the click of a mouse.
If you have been victimized and harmed by someone’s defamatory statements about you, contact a lawyer experienced in these cases. You have a right to sue for damages, and a defamation lawyer gives you the best chance of a good outcome.