Guide to Defamation: Libel and Slander

By Elspeth Crawford

No one likes it when people spread lies behind their back. If someone has done this to you, you may be entitled to sue that person under the law of defamation. Defamation occurs when someone else says or tells another person a false statement about you that damages your reputation or good name. Defamation comes in a couple of different varieties. Defamation through writing is called “libel.” Spoken defamation is called "slander."

Libel

Libel is written defamation. It can come in many forms: through a blurb in a newspaper article, a memo circulated around an office, an e-mail, and more. In order to recover against someone who has committed a libel against you, you must show that the written statement was:

• Defamatory. That is, the written statement harmed your reputation in some way. Statements which are merely insulting do not count. If, for example, someone wrote on an internet message board that someone else was ugly, the statement would be offensive but not necessarily libelous. If, on the other hand, that same statement was written by an modeling agency about a professional model, someone who made a living off their appearance, it could qualify as a libelous statement.
• Published to at least one other person. If someone writes an insulting comment but keeps it to themselves, there can be no cause of action for libel. The written statement must be shown to at least one other person for it to be actionable.
• Made with some degree of fault. It is not enough that one publishes an offensive statement; they must do it without permission and with fault. The level of fault required varies depending on the situation. If the person being libeled is a public figure, the standard is high. In this case, the person publishing the libel must do it with malice, meaning that they knew the statement was untrue and would damage the public figure’s reputation when they published it. If the person being libeled is not a public figure, all that is required is that the person who made the libel did it negligently, meaning that they were careless under the circumstances.

 
Also know that libel is not limited to written statements. Libel also encompasses offensive pictures, caricatures, statutes, and effigies that meet the above requirements. Keep that in mind the next time you make an offensive wood carving.

Slander

Unlike libel, slander is spoken rather than written. If someone says something offensive and untrue about you to another person and it damages your reputation, you may be able to sue for slander. Slander has the same basic requirements as libel, that is the statement must be defamatory, must be published to at least one other person, and must be said with some degree of fault. In fact, some states don’t have separate laws for libel and slander but treat both the same. Still, there are a few wrinkles that make slander unique.

• Because slander is verbal, it can be harder to prove than libel, which by nature comes with a written record. If you’re thinking of suing someone for slander, you may want to make a log of what was said, when it was said, and to whom it was said.
• The statute of limitations on slander, that is, how long you’re allowed to sue for a slander after it happens, can be as little as one year. If you want to sue for slander, take care to do so soon after you find out about it.

 
Defenses

If you’re sued for defamation, know that there are some situations in which you are not liable. These situations include:

• The statement made was true. A statement is only defamatory if it is untrue. If you made an offensive statement about someone, either spoken or in writing, that was nevertheless true, you cannot be sued for defamation.
• The statement was an opinion. The law of defamation punishes people for publishing false facts, but it does not punish them for publishing their own opinions. The line here can be thin, possibly the difference between “This person is stupid” and “I think this person is stupid.” The former may be a defamatory statement, while the latter is not. When making comments, whether they be in conversation or on an internet message board or anywhere else, be careful about your phrasing.
• The statement was privileged. Many professional communications are privileged. The lawyer-client privilege protects communications made between lawyers and their clients, the doctor-patient privilege protects the same made between doctors and their patients, and so on. If a statement is privileged, it is shielded from actions for defamation.
• The statement was consented to by the person suing. If the person suing you for libel or slander gave you permission to publish the statement at issue, they are not allowed to sue you over it.

 
If you are ever sued for defamation, the best course of action is to consult an attorney, as there are subtleties to using any of these defenses which a lawyer will more readily understand.

Damages

If you've been defamed, you may be entitled to receive a monetary award to compensate for your damaged reputation or lost business. The process of proving the amount of the award can be difficult and could require extensive negotiations or a trial. If the defamation was particularly reprehensible, you might also collect "punitive damages," which exist to punish people beyond the amount it would take to merely compensate a defamed person for their losses.

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