Defamation laws fall under the umbrella of personal injury law because they are considered to cause harm to an individual through written or spoken words. Here, personal injury attorney Douglas C. Lauenstein provides an overview of defamation laws and guidance for those who believe they have been defamed.
There are Two Types of Defamation: Libel, and Slander
Defamation includes any statement that hurts an individual’s reputation. These statements can either be written—also known as libel—or spoken, which is considered slander. Both libel and slander must be public, meaning one or more third parties have seen, heard or read the statement. Public forums for libel or slander may include books, magazines, television, radio, blogs, social media accounts and more.
Every Defamation Case Has Five Major Elements
As with any personal injury case, the plaintiff must prove several elements to be true in order to receive damages. These elements are as follows:
Someone Made a Statement
A statement, following the guidelines above, must first be made. Libel is often considered more damaging than slander, because spoken words are not captured, and so may fade from the public memory sooner than written or recorded words.
The Statement Was Published
A statement is considered to be published when a third party sees, heard or reads the statement. Note that published is not used in the traditional sense—a statement expressed on television or written in a public place is also considered “published.”
The Statement Caused Injury
A statement made about an individual is not considered defamatory, no matter how false or cruel, if it does not cause harm to the reputation of the individual about which it was made. Such harm could include termination from a job, separation or divorce, loss of job opportunities and more.
The Statement Was False
Only false statements are considered defamatory—a true statement, regardless of the harm it may cause, is not considered to be defamation. Furthermore, an individual’s personal opinion cannot be considered defamation, because opinions are subjective, and as such cannot be quantified as “true” or “false.”
The Statement is Not Privileged
Some statements, such as those expressed by a witness during a trial testimony, are considered privileged, and consequently are not considered defamation. Other statements that may be considered privileged are those made during governmental or legislative proceedings, as well as criticism given in a review. Employers who make statements about a former employee as a character reference are also sometimes considered to be privileged. Whether a statement is privileged or not is typically left to the discretion of lawmakers or judges.
Public Officials and Celebrities Have a Higher Burden of Proof in Defamation Cases
Our government places a high value on the right of the public to speak openly and robustly about elected officials and other public figures. As such, these individuals have a higher burden of proof when seeking damages for defamation. A plaintiff who is a public figure or elected official must not only prove the five elements of defamation above, but they must also prove the statement was made with “actual malice.” An individual who has acted with actual malice was defined by the Supreme Court as an individual who did not make the mistake accidentally or by honest mistake, but who instead made the statement with the intent to cause the plaintiff actual harm. If the defendant knew the statement was false at the time they made it, or if they had reckless disregard for the honesty of the statement, they may be guilty of defamation.
Consult Douglas C. Lauenstein to Better Understand Defamation
Although the right to free speech is enshrined in our Constitution, individuals usually do not have the right to make public, false and harmful statements about others. If you feel that you have been defamed, it is critical that you speak to an experienced personal injury attorney who can defend your rights in court. For more information about how Douglas C. Lauenstein can help with your personal injury case, contact us immediately for a free consultation.