“Defamation of character” is a legal term referring to any false statement—called a “defamatory” statement—that harms another person’s reputation or causes them other demonstrable damages such as financial loss or emotional distress. Rather than a criminal offense, defamation is a civil wrong or “tort.” Victims of defamation can sue the person who made the defamatory statement for damages in civil court.
Statements of personal opinion are usually not considered to be defamatory unless they are phrased as being factual. For example, the statement, “I think Senator Smith takes bribes,” would probably be considered opinion, rather than defamation. However, the statement, “Senator Smith has taken many bribes,” if proven untrue, could be considered legally defamatory.
Libel vs. Slander
Civil law recognizes two types of defamation: “libel” and “slander.” Libel is defined as a defamatory statement that appears in written form. Slander is defined as a spoken or oral defamatory statement.
Many libelous statements appear as articles or comments on websites and blogs, or as comments in publicly-accessible chat rooms and forums. Libelous statements appear less often in letters to the editor sections of printed newspapers and magazines because their editors typically screen out such comments.
As spoken statements, slander can happen anywhere. However, to amount to slander, the statement must be made to a third party—someone other than the person being defamed. For example, if Joe tells Bill something false about Mary, Mary could sue Joe for defamation if she could prove that she had suffered actual damages as a result of Joe’s slanderous statement.
Because written defamatory statements remain publicly visible longer than spoken statements, most courts, juries, and attorneys consider libel to be more potentially harmful to the victim than slander. As a result, monetary awards and settlements in libel cases tend to be larger than those in slander cases.
While the line between opinion and defamation is fine and potentially dangerous, the courts are generally hesitant to punish every off-hand insult or slur made in the heat of an argument. Many such statements, while derogatory, are not necessarily defamatory. Under the law, the elements of defamation must be proven.
How Is Defamation Proven?
While the laws of defamation vary from state to state, there are commonly applied rules. To be found legally defamatory in court, a statement must be proven to have been all of the following:
- Published (made public): The statement must have been seen or heard by at least one other person than the person who wrote or said it.
- False: Unless a statement is false, it cannot be considered harmful. Thus, most statements of personal opinion do not constitute defamation unless they can objectively be proven false. For example, “This is the worst car I have ever driven,” cannot be proven to be false.
- Unprivileged: The courts have held that in some circumstances, false statements—even if injurious—are protected or “privileged,” meaning they cannot be considered legally defamatory. For example, witnesses who lie in court, while they can be prosecuted for the criminal offense of perjury, cannot be sued in civil court for defamation.
- Damaging or Injurious: The statement must have resulted in some demonstrable harm to the plaintiff. For example, the statement caused them to be fired, denied a loan, shunned by family or friends, or harassed by the media.
Lawyers generally consider showing actual harm to be the hardest part of proving defamation. Merely having the “potential” to cause harm is not enough. It must be proven that the false statement has ruined the victim’s reputation. Business owners, for example, must prove that the statement has caused them a substantial loss of revenue. Not only can actual damages be hard to prove, victims must wait until the statement has caused them problems before they can seek legal recourse. Merely feeling embarrassed by a false statement is rarely held to prove defamation.
However, the courts will sometimes automatically presume some types of especially devastating false statements to be defamatory. In general, any statement falsely accusing another person of committing a serious crime, if it was made maliciously or recklessly, may be presumed to constitute defamation.
Defamation and Freedom of the Press
In the 1964 case of New York Times v. Sullivan, the U.S. Supreme Court ruled 9-0 that certain statements, while defamatory, are specifically protected by the First Amendment. The case concerned a full-page, paid advertisement published in The New York Times claiming that the arrest of Rev. Martin Luther King, Jr. by Montgomery City, Alabama, police on charges of perjury had been part of a campaign by city leaders to destroy Rev. King’s efforts to integrate public facilities and increase the black vote. Montgomery city commissioner L. B. Sullivan sued The Times for libel, claiming that the allegations in the ad against the Montgomery police had defamed him personally. Under Alabama state law, Sullivan was not required to prove he had been harmed, and since it was proven that the ad contained factual errors, Sullivan won a $500,000 judgment in state court. The Times appealed to the Supreme Court, claiming that it had been unaware of the errors in the ad and that the judgment had infringed on its First Amendment freedoms of speech and the press.
In its landmark decision better defining the scope of “freedom of the press,” the Supreme Court ruled that the publication of certain defamatory statements about the actions of public officials were protected by the First Amendment. The unanimous Court stressed the importance of “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” The Court further acknowledged that in public discussion about public figures like politicians, mistakes—if “honestly made”—should be protected from defamation claims.
Under the Court’s ruling, public officials can sue for defamation only if the false statements about them were made with “actual intent.” Actual intent means that the person who spoke or published the damaging statement either knew it was false or did not care whether it was true or not. For example, when a newspaper editor doubts the truth of a statement but publishes it without checking the facts.
American writers and publishers are also protected from libel judgments issued against them in foreign courts by the SPEECH Act signed into law by President Barack Obama in 2010. Officially titled the Securing the Protection of our Enduring and Established Constitutional Heritage Act, the SPEECH act makes foreign libel judgments unenforceable in U.S. courts unless the laws of the foreign government provide at least as much protection of the freedom of speech as the U.S. First Amendment. In other words, unless the defendant would have been found guilty of libel even if the case had been tried in the United States, under U.S. law, the foreign court’s judgment would not be enforced in U.S. courts.
Finally, the “Fair Comment and Criticism” doctrine protects reporters and publishers from charges of defamation arising from articles such as movie and book reviews, and opinion-editorial columns.
Key Takeaways: Defamation of Character
- Defamation refers to any false statement that harms another person’s reputation or causes them other damages such as financial loss or emotional distress.
- Defamation is a civil wrong, rather than a criminal offense. Victims of defamation can sue for damages in civil court.
- There are two forms of defamation: “libel,” a damaging written false statement, and “slander,” a damaging spoken or oral false statement.