What Is Defamation Law?

Defamation law is the legal framework regulating false statements that cause reputational damage. A private individual can sue for damages when someone negligently makes a false statement of fact that causes harm. There is a qualified privilege for defamation against public figures unless it is made with actual malice.

Libel is defamation in published content; slander is spoken defamation. Defendants have a truth defense or opinion defense in litigation. Plaintiffs can seek a retraction request or financial compensation, including general damages, special damages, and emotional distress.

For more information about defamation laws in your state, talk to a lawyer experienced in defamation cases for legal advice.

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. Libel is a written statement, such as a news article, a social media post, or a billboard ad. Slander is a spoken statement heard by others.

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

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What Do You Have To Prove in a Defamation Case?

To win a tort case for defamation and recover damages, you have to prove the elements of a civil claim. As the plaintiff, you have the burden of proof. The elements to prove defamation include:

1. They made a false statement of fact
2. The statement was made to a third party
3. The person made the false statement intentionally, negligently, or recklessly
4. The false statement caused harm to the plaintiff’s reputation

1. There Was a False Statement

The false statement must also be a statement of fact. An unflattering or critical opinion is protected by your freedom of speech.

A review stating that a restaurant has terrible pizza isn’t defamation but rather a negative opinion. Someone saying they think you’re a jerk or incompetent isn’t defamation, even if it changes how other people see you. However, someone saying you stole from your employer when you did not is defamation.

Truth is an absolute defense to defamation claims. Even reputationally harmful statements, if true, would not give rise to a cause of action for defamation.

2. The False Statement Was Made to a Third Party

Defamation requires “publishing” the statement to a third party. Whether written or spoken, if someone else reads or hears the false statement, that statement is considered published.

If someone said something false about you and no one else heard it, then you do not have a claim because the statement was not published.

[In] most of the cases I see… the underlying lawsuit is brought as a defamation claim alleging libel or slander, and we bring up the First Amendment and anti-SLAPP statutes as our primary defense.

3. The Level of Fault Depends on the Victim

For a defamation claim, you have to show some level of fault. This can include intentionally making a false claim or negligently saying something without checking whether it is true.

This element can differ depending on whether the subject of the defamatory statement is a public or private figure.

Defamation for Private People

For most defamation claims, you 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 reasonably. The statement is negligent if a reasonable person would not have made the claim under similar circumstances.

The standard of care in negligence cases can vary. What counts as reasonable depends on the individual situation. For example, the standard of care for journalists might differ from that for your employer, coworker, or neighbor.

There are broader free speech protections if the statement concerns a matter of public interest, even when directed at a private person. State laws on defamation involving public concern vary by jurisdiction. To understand your legal rights to file a defamation claim, speak with an attorney who understands the law in your area.

Public Figure Defamation

Public figures and public officials don’t have the same protections against defamation. If you are a government official alleging defamation, you need to prove actual malice.

Established by the U.S. Supreme Court in the landmark case New York Times Co. v. Sullivan, the actual malice standard requires you to prove that the person making the statement knew it was false or acted with reckless disregard for the truth or falsity of the statement.

4. The False Statement Harmed the Person’s Reputation

Finally, you will need to prove that you suffered harm as a result of the statement. You must show damage to your reputation or your business reputation.

For example, if someone claims you stole from your employer, your employer may fire you. Other employers may not hire you because of the false claims of theft. This harms your reputation and causes financial damage.

Defenses to Defamation Claims

There are legal defenses to defamation claims. The strongest defense will always be that the statement was true. A true statement, no matter how harmful, isn’t grounds for a defamation lawsuit.

Other legal defenses challenge any or all of the elements required for a defamation claim. If the plaintiff fails to prove any element of defamation, they can’t recover damages.

Retraction of a defamatory statement is a partial defense. A retraction takes back the false statement, which can limit damages in a defamation lawsuit.

Privileged Communications

Privileged positions or communications can act as a defense against defamation charges. Privileges are either absolute or qualified and depend on the venue. For example, a witness in court enjoys absolute privilege against defamation lawsuits for statements made during judicial proceedings.

However, that privilege may not follow them to other areas of their life, even for the same statements. Legislators 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.

Anti-SLAPP Defenses

The defense in some defamation cases relies on state anti-SLAPP laws. SLAPP stands for Strategic Lawsuits Against Public Participation. Companies bring SLAPPs against people who have criticized or posted negative content about them in order to silence the criticism.

The majority of states have anti-SLAPP laws that protect people from meritless lawsuits intended to silence or intimidate them for exercising their First Amendment rights.

“Most of the cases I see involve situations where someone said something on the internet, like a negative Yelp review, or a negative comment on a podcast, news report, or article, and another party felt offended and sued them for it,” says Jeff Lewis, a First Amendment litigator and founder of Jeff Lewis Law in Rolling Hills Estates, California.

“A massive chunk of my practice relies on anti-SLAPP laws. If your state has a powerful anti-SLAPP law, it serves as an incredibly effective tool for dismissing these groundless cases quickly before they get out of hand,” says Lewis.

“Most of the time, the underlying lawsuit is brought as a defamation claim alleging libel or slander, and we bring up the First Amendment and anti-SLAPP statutes as our primary defense.”

Find the Right Attorney for Your Defamation Action

Defamation cases are complex and fact-specific. An experienced lawyer understands what you need to prove and the best way to prove it.

Your lawyer will gather the necessary documentation to help you demonstrate how your reputation was harmed. They can help you navigate the legal system to recover compensatory and punitive damages for your injured reputation.

Visit the Super Lawyers directory to look for an experienced defamation law attorney in your area.