While the first amendment in the U. S. Constitution guarantees the right to free speech, some types of speech are not protected. For example, someone can be held liable in a civil lawsuit for defaming another person by libel or slander. Through the years, courts have set strict standards on what constitutes defamation in these cases.
What Is Defamation?
Anyone who gets involved in a defamation case should learn a few important definitions that apply to these cases. Defamation of character, or simply defamation, is a legal term that describes when one person tells a lie about another person that harms the first person's life. For example, if John starts telling people that Jerry is a thief, and this false rumor keeps Jerry from getting a job, Jerry may be able to sue Tom for defamation of character.
There are several types of defamation. Libel applies when the damaging claim is in writing, while slander describes spoken defamation. So, if John sent his accusation by email or text, Jerry might file a libel lawsuit. However, if John only said this accusation out loud, it may constitute slander.
What Defamation Claimants Must Prove
Not every defamation lawsuit is successful in proving that the respondent did anything legally wrong. The plaintiff, the person filing the lawsuit, must prove several things in order to be successful:
- Falsity: The plaintiff must show that the information the respondent shared was untrue.
- Published: While the accusation does not need to be written, it must have been shared with someone outside the lawsuit.
- Harm: The plaintiff must show that what the respondent said or wrote caused damage to the plaintiff's personal or professional life.
- Unprivileged: Statements made in congressional hearings, depositions or court hearings are considered privileged and immune to defamation lawsuits. Some other situations also grant a person this privilege.
If a plaintiff cannot prove all of these elements adequately, she will not win a defamation lawsuit. In certain cases, judges may require plaintiffs to show that the respondent intended to cause harm to the plaintiff. This is particularly common when the plaintiff is a public figure or a celebrity.
For example, a misprint or a typographical error about a celebrity may not qualify. Courts have found that celebrities and other public figures must prove that the respondent acted in malice when they spoke ill of the celebrity. This is a higher burden of proof than for private citizens.
Defenses Against Defamation Lawsuits
Most defamation defenses rely on disproving one or more elements that the plaintiff needs to prove. For example, a respondent may prove that the thing they said or wrote was actually true. If this is found to be the case, the defamation case may be dismissed. For example, a journalist who writes that a politician took a bribe cannot be found liable for libel if that claim is true.
Another common defense is that there was no damage done. A respondent may say that while the accusation was false, unprivileged and published, it caused no personal or professional damage.
If a public figure brings the lawsuit, the respondent may claim that it was an honest mistake and no harm was intended. Because courts hold these suits to a higher standard, a respondent may successfully defend against a defamation case if she can prove that no malice occurred.
Another example of a defense may be that the information was shared only between the plaintiff and the respondent, and not published. For example, if Sally told Margaret, "You're lying to me," but never told anyone else that Margaret was a liar, Margaret may not sue Sally successfully.
Opinion vs. Defamation
In the world of social media, opinions of others are a dime a dozen. Luckily, opinion is protected by the First Amendment and does not count as defamation. It's important for anyone talking about others on social media or in person to understand the difference between opinion and defamation. Some examples include:
- Opinion: I think Tommy is so annoying.
- Possibly defamation: Tommy does illegal drugs.
- Opinion: I would never vote for that politician.
- Possibly defamation: This politician is having an affair with a staffer.
Publishing false, harmful accusations on social media could count as defamation of character if a lawsuit is filed.