Elements Required for Defamation
Defamation, whether libel or slander, is the making public of a false statement about a person that causes damage to their reputation. The majority of defendants in defamation, libel, and slander actions are publishers and newspapers, and to a lesser extent television broadcasters. The definitions of defamation libel and slander vary from state to state so it is important to know the laws of your particular state before embarking on any legal process. However, there are no states in which a defamation action can be taken if the injured party is deceased.
Broadly there are four elements that the plaintiff is required to prove in a defamation lawsuit, whether for libel (a defamatory written statement, for example in a newspaper or other publication) or slander (a defamatory spoken statement.) These are as follows:
- The statement, which must be about another person, must be false.
- The statement must be ‘published’ to a third party, who cannot also be the person who is being defamed. Publishing in this context does not mean that it must be printed, but purely that the statement has to be ‘made available’ to someone other than the person about whom the statement was made.
- If the nature of the statement is ‘of public concern’ the person who has published it must be at least liable in negligence. Public figures who seek to prove that they have been defamed must prove an additional element under the First Amendment of the US Constitution, that in publishing the statement the defendant was acting with ‘actual malice’ (by publishing something they know to be a lie) or at least to have a total disregard for whether the statement is true or not.
- The person about whom the defamatory statement is made must be ‘damaged’ by the statement. In some states, it is sufficient to establish that the plaintiff suffered ‘mental anguish’ as opposed to ‘damage.’
Defamation per se
In the context of libel or slander ‘per se’ means defamation that is intrinsically damaging. In other words, there is no requirement in these cases for ‘damage’ or injury to be established, as proof of the fact that one of these statements has been made is sufficient. Broadly there are four categories to defamation per se; accusing someone of a crime, imputing serious sexual misconduct (e.g. chastity of a woman); casting adverse comment on someone’s ability to conduct business or trade; or that someone has a disease, for example a sexually transmitted disease or mental illness. With the exception of five states (Arizona, Arkansas, Missouri, Mississippi and Tennessee) all states in the US consider these categories to be defamatory per se.
It can be very hurtful to be the victim of libelous or slanderous statements and you will undoubtedly be very angry. However, before you commence an action there are certain aspects that you should consider first. See our article ‘Defenses to Libel and Slander’ for further information. To find out whether you might have a case for defamation, contact a personal injury attorney without delay.