Definitions of Libel and Slander

Libel and slander are two torts that fall under the umbrella of defamation. Defamation or "defamation of character," is spoken or written words that falsely and negatively reflect on a living person's reputation. The torts of libel and slander are meant to protect individuals from damage to their reputation.

Libel is a false and unprivileged communication via a medium that can be observed by the eye including but not limited to a writing, printing, or effigy, including magazines, newspapers and other published materials. Libel includes communications that exposes a person to hatred, contempt, ridicule or humiliation or be injured in her occupation.

Slander refers to false or unprivileged expression via oral utterance, communication by radio or some other mechanical means (including but not limited to television). Slanderous language is language that:

• charges a person with a crime;
• implies that a person has a contagious or loathsome disease or has spread that disease to another person;
• statements that may injure a person in their professional trade;
• implies impotence or lack of chastity; or
• causes actual damage.

Elements of a Defamation Claim

Publication

While mass communication is not required, making the statement known to another individual (other than the person who is being defamed) can satisfy the element of publication. An exception to this rule is that making statements to the spouse of the publisher does not satisfy this element is some jurisdictions. The publisher will be held to a negligence standard with regard to this element. In other words if a reasonable person would be expected to know that the act in question could lead to publication of the defamatory comment to a third person, the publication element will be satisfied.

Identification:

The plaintiff must prove that the defamation referred to him or her specifically, although it need not refer to the plaintiff by name.

Malice, Intent, Fault, and Falsity:

This element arises in 5 ways:

• The evaluation of the intent or fault of the defendant in publishing the material to a third party
• The intent or fault of the defendant in regarding the falsity of the statement.
• The intent of fault of the defendant regarding defamatory character of the statement.
• The intent or fault of the defendant regarding the content of the statement.
• The intent or fault of the defendant regarding the whether or not he/she knew that the statement referred to the plaintiff.

Inaccurate Quotes

An inaccurate quote may be cause of action for defamation. Attributing statements to a speaker who did not utter the quoted text may have negative repercussions on the quoted person's character.

Opinion

The Supreme Court has set forth doctrine to balance between the lines of constitutionally protected free speech and defamatory statements. The following are guidelines that aid a court in distinguishing between protected free speech and defamatory language A statement of public concern must be proven false before there can be liability under state defamation laws when a media defendant involved Statements that are obviously hyperbole or that cannot reasonably interpreted as fact are protected. Statements of opinion concerning public official or a public figure that reasonably implies false and defamatory facts must be proven to be made with knowledge of their falsity or reckless disregard for the truth. Appellate court review of the entire record aids in allaying fears that determinations on defamatory language will intrude on constitutional protected free speech.

Humor, Satire, Epithets, and Fiction

It is not a defense that the alleged defamer considered his/her statements to fall in the above stated categories. The issue is what is the intent conveyed to the reader or listener. A plaintiff attempting to prove defamation in this context will have a difficult go at it. The plaintiff will have to prove that his/her reputation is harmed by the average reader/listener and that the statement is sufficiently factual to be susceptible of being proven true or false. Works of fiction may sufficiently satisfy the identification element if the author intentionally used and identifies by name a living individual or if the author basis her character on a living individual. If the average reader understands that the work is one of fiction or is intended to be exaggerated the plaintiff's claim that his/her reputation was injured is diminished.

Who is Liable?

Generally those who participate in the publication of the utterance or writing may be held liable. Certain jurisdictions suggest that the liable participants must have some type of editorial control over what is being published. Those who solely transmit or delivers the information may not be held liable for the content of what is being distributed. Employers are generally held liable for defamatory statements made by employees while fulfilling duties in the scope the employment.

Defenses and Privileges

Proving the truth of a statement will bar liability for defamation. Establishing the truth is the single most effective defense that can be made. If a truthful remark hurts, is embarrassing, or subjects you to ridicule, there is little you can do. Unless the remark is false, you do not have a valid claim. However, you should consult your state statutes for other defense and privileges. Some jurisdictions provide immunity for governmental officials and privileges arising out of special relationships.