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".
What Are Defamation, Libel and Slander?
Generally speaking, defamation is the issuance of a false statement
about another person, which causes that person to suffer harm. 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.
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
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
- Allegations that the person has committed a crime of moral turpitude;
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.
What Defenses Are Available To People Accused of Defamation?
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.
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.
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, where 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".
Why Commencing A Defamation Action Is Not Aways A Good
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.