Defamation is a statement that tends to adversely affect one’s reputation. There are two kinds of defamation:
- Libel – written defamation
- Slander* – spoken or verbal defamation.
To recover damages for defamation, you must prove that a statement:
- Contained language tending to harm your reputation, rather than just being offensive or name-calling.
- Was published to a third person
- Was about you, as understood by a reasonable person
- Damaged your reputation
If the statement involves a public concern or a public figure, you also need to prove:
- Falsity of the statement
- Fault of the defendant–actual malice (knowledge of falsity or reckless disregard as to truth or falsity).
- A private person only needs to show that the defendant was negligent and did not act with due care under the circumstances.
The damages recoverable depend on whether you are a public or private figure, and whether the defamation is libel or slander.
For libel, general damages are presumed, and special damages (pecuniary loss) do not need to be proved. For slander, special damages must be proved unless the statement falls under one of the slander per se exceptions:
- Adversely affects your business or profession
- Implies you have a loathsome disease
- Suggests a woman is unchaste
- Implies that you committed a crime of moral turpitude
If a defamatory statement is made about a public figure with actual malice, damages are presumed. If the statement is made with negligence about a private person in a matter of public concern, damages are available for “actual injury.” Presumed damages are available for a statement concerning a private person in a matter of private concern. Punitive damages are also available when appropriate.
You may be able to successfully defend a defamation lawsuit if you can show:
- Your statement was true
- Your statement was one of opinion, not fact
- Your interest in publishing the statement was more important than the plaintiff’s interest in protecting his/her reputation.
*Radio and television programs can fall within the category of libel, rather than slander, if they are of a permanent nature and are widely disseminated.