An Overview on Defamation Law

Use these links to jump to different sections:

• What is Defamation?
• What Do You Have to Prove in a Defamation Case?
• Defenses and Privileges
• Common Questions for an Attorney
• Finding the Right Attorney for Your Needs
• Why Should I Talk to a Lawyer?

The First Amendment to the U.S. Constitution protects people’s right to free speech.

However, U.S. law also seeks to prevent people from having their lives ruined by someone’s false statements. When someone makes a false statement about you that harms your reputation or affects your ability to make a living, you might be able to sue them for defamation.

If you think someone has said something defamatory about you—or if someone sued you for saying something defamatory—the following overview can help you evaluate your case. It discusses how you prove a case and common defenses. This way, you will have a basic understanding of the legal framework for your case when you sit down with your lawyer for the first time.

What is Defamation?

Defamation is a false statement communicated to other people that harms an individual’s reputation.

There are two types of defamation: libel and slander. Generally, libel is written while slander is spoken. The split isn’t always that clear, however. For example, a defamatory radio broadcast, while spoken, is libel.

Whether spoken or written, libel or slander, you will use the same approach to prove your case and the same defenses will be available.

What Do You Have to Prove in a Defamation Case?

If you would like to sue someone for defamation, you will need to prove that they made a false statement of fact to a third party. You will also need to prove some level of fault (at the very least, negligence) and that the false statement caused you some kind of harm.

There Was a False Statement

Legally, true statements cannot be defamatory even if the truth affects your standing in the community.

The false statement must also be a “statement of fact”—a merely unflattering or critical opinion is protected under freedom of speech. That means that someone saying they think you are a jerk or liar isn’t defamation, even if it changes the way other people see you. However, someone saying they think you stole from your employer when you did not can be defamation, even if it’s qualified with language that sounds like an opinion, such as “I think.”

The False Statement was Made to a Third-Party

Whether written or spoken, if the false statement was read or heard by a third party, the statement has been “published.” If someone said something false about you to you and no one else, then you do not have a claim because the statement was not published.

The Level of Fault Depends on Who Was Defamed

This element will be slightly different depending on whether the subject of the defamatory statement is a public or private figure.

Private Figure

If you are alleging defamation and you’re a private person, then you will likely only need to prove that the other party made the statement negligently. Proving negligence generally involves showing that the person who made the allegedly defamatory statement did not act in the way that a reasonable person would have in the same or similar circumstances.

The standard of care in negligence cases can vary. What counts as “reasonable” depends on the context of the actions or statements. For example, did the local newspaper writer fail to follow proper editorial procedures in researching the piece about you? Did they act like a professional journalist would? The standard of care for journalists might be different from the standard of care for your coworker or neighbor.

Note that fault in defamation claims involving private persons can change in some circumstances—for example, if the statement was about a matter of public interest despite your status as a private person. State laws on defamation also vary by jurisdiction, making it important to speak with an attorney who understands the law in your area.

Public Figure

If you are alleging defamation as a public official or public figure, you will need to prove something called actual malice. Established by the U.S. Supreme Court in the landmark case New York Times Co. v. Sullivan, the actual malice standard means you will need to prove the person making the statement knew it was false or acted with reckless disregard to the truth or falsity of the statement.

The Defamed Person Was Harm

Finally, you will need to prove you suffered harm because of the statement. In the world of defamation, this means you will be required to show damage to your reputation. If you already had a reputation for being a liar, someone falsely saying you lied may not rise to the level of defamation because it didn’t affect your reputation.

Defenses and Privileges

If you are being sued for defamation, your strongest defense will always be that the statement was true, since a true statement—no matter how harmful—is not legally actionable. Your second-best defense will be to allege that the plaintiff did not meet one of the necessary elements discussed above.

Another thing you may want to consider is privilege, which refers to the fact that sometimes an individual is immune from liability.

Privilege is either absolute or qualified and applies more to the venue in which the statement was made than it does to the person who made the statement. For example, a witness in court enjoys absolute privilege from a defamation lawsuit for statements made during the judicial proceedings.

However, that privilege may not follow them to other areas of their life, even if they’re making the same statements. This is also true of legislators who enjoy a qualified privilege for potentially defamatory statements made during legislative proceedings. The qualified nature of this privilege means they can lose it and be held liable if they acted with actual malice.

Common Questions for an Attorney

Below are some common questions you might want to consider when meeting with an attorney for legal advice about your possible cause of action:

1. What is your experience with cases involving defamation law?
2. What are your attorney’s fees and billing options?
3. Do I have a good defamation action?
4. Who has the burden of proof in a defamation case?
5. How long could it take for my case to make it through the legal system?
6. What damages are available if I win a defamation lawsuit? For example, are special damages or punitive damages available?

Finding the Right Attorney for Your Needs

It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.

To help you get started, you may want to consider looking for a lawyer who has experience with defamation cases.

Why Should I Talk to a Lawyer?

Defamation cases can be complex because they involve constitutional law and occasionally state law. An experienced lawyer will know what you need to prove and the best way to prove it. Your lawyer will gather necessary documentation to help you show how your reputation was affected (or not affected, if you are the defendant), and they will interview potential witnesses for you.

A lawyer will be able to anticipate potential problems with your case and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you one less thing to worry about.