Defamation involves much more than someone simply making a negative statement about someone. Certain elements, or conditions, must be present, and the plaintiff or individual filing the defamation suit must prove them to the court's satisfaction if they're going to be successful in a defamation lawsuit.
The statement can’t be true and it must cost the plaintiff measurable and definable harm. They'll probably need the assistance of one or more experts to establish these factors. But defamation lawsuits are winnable if they pay attention to the details and if they go in knowing what to expect. Each state has its own rules for what constitutes defamation, but there are some common themes.
The Definition of Defamation
In legal terms, a defamation case is a tort, or civil wrong. It's heard by a civil – not criminal – court and it can result in the defendant being ordered to pay punitive or monetary damages. The term defamation is actually an umbrella for two types of wrongdoing: libel and slander. Libel means that the statement was made in printed form. The statement is slander if it’s spoken aloud.
Elements of a Defamation Lawsuit
Plaintiffs must generally prove all of these factors or elements to win a defamation case:
- The statement wasn’t true. If someone said that a certain individual stole revenue from his business partner, and the person did indeed do so, it’s not defamation to let the cat out of the bag. It’s a statement of fact.
- The statement was published. This doesn’t necessarily mean that it was printed in a newspaper, although it might have been. It means that the statement was heard or read by another individual; not muttered in a dark, empty room. It can be made in conversation or spoken in a podcast, on television, or even online on a social media site.
- The statement wasn’t privileged. This means that the statement wasn’t protected by law in any way, such as testimony made by a witness in a courtroom.
- The statement was stated as a fact, not an opinion. “I think Joe may have cheated” isn’t defamation.
- The statement injured the plaintiff or their reputation, usually having financial repercussions.
The plaintiff must establish these factors by a preponderance of the evidence. When added together, the evidence shows that there is a greater than a 50 percent likelihood that defamation of character did indeed take place.
Direct vs. Circumstantial Evidence
The plaintiff must prove to the court that all of the elements exist, and they have two options for doing this in a civil lawsuit: direct evidence and circumstantial evidence. Ideally, they'll be able to present both types of evidence, although the first is the most important.
- Direct evidence would be a witness testifying that he heard the comment or an actual newspaper or recording they produce where the statement was clearly printed or spoken. Think of direct evidence as something tangible.
- Circumstantial evidence is inferred. It makes sense based on the direct evidence. It logically follows that the author was responsible if they're libeled in a newspaper article, even if no one actually witnessed him typing the words into his laptop.
Gathering Important Evidence
Plaintiffs will have to produce witnesses who can testify that they read or audibly heard the statement, and they might want to vet them to ensure that there’s nothing unsavory in their pasts that could potentially make the judge or a juror distrust them. In the case of printed defamation, they'll want to produce copies.
The plaintiff will need experts to quantify the monetary value of the damage they suffered. They’ll testify on their behalf, too. Bank statements showing before-and-after balances or denials of employment can be helpful here, such as if they were fired from their job as a result of the defamation and have been unable to find another.
And they should anticipate that the defendant is going to argue that they weren’t defamed possibly because the statement was an opinion, not given as a matter of fact, or that it didn’t result in any negative consequences. The defense will try to shoot holes in their proof. They'll want to formulate possible responses in advance if they're not represented in the lawsuit by an attorney.
Initiating the Legal Process
The lawsuit process begins with filing a complaint in civil court, then having it officially served upon the defendant or defendants. The plaintiff has to be able to prove that they did indeed receive a copy. This can mean hiring a private process server who will deliver the documents personally, then sign a proof of service that the plaintiff can submit to the court.
An accompanying summons will typically tell the defendant how he can respond and how long he has to do so. A plaintiff can expect that the defense will file a written response or answer to their complaint.
Most states impose a statute of limitations on how long someone has to file a complaint for defamation. For example, it’s one year in California after the statement is first spoken or published. They're out of luck if they don’t file a lawsuit within this time, so they should check with an attorney or the court to find out how long they have in their jurisdiction. And no, it doesn’t matter if the statement is live on the internet or in a podcast for perpetuity because the clock begins running with the first time it airs or is posted.
The Discovery Process
Plaintiffs have a right to know what information the defendant possesses about the matter – and the defense want to know what the plaintiff knows – as everyone begins preparing for trial. The process of unearthing this information is known as discovery. It’s not necessarily restricted to evidence. It might unearth information that leads to other information that can be used as evidence.
Depositions are part of the discovery process. They let everyone know what the other guy knows and is likely to say at trial. Other methods of discovery include interrogatories – written questions that all parties are required to answer under penalty of perjury and requests for production of documents that might constitute direct evidence at trial.
Litigants can subpoena experts or third parties to testify or to produce documents on their behalves, or ask the defendant to admit to certain things in writing. This discovery process is logically referred to as a request for admissions.
What Happens at Depositions
Depositions are a common component of most civil lawsuits. Plaintiffs ask the defendant to answer questions under oath outside of a courtroom, but a court reporter is typically present to record what’s said. The defendant or his attorney will probably depose the plaintiff as well, and experts can be deposed, too. Depositions are a fact-finding mission used to pin down testimony because no one can testify to something completely differently at trial if their words are already a matter of record in a sworn deposition.
The Settlement Conference
Parties to a lawsuit might engage in a settlement conference to determine whether they can agree to a resolution on their own. Courts in some states require this before proceeding to trial. The matter will go to trial if they can’t reach an agreement, where it might be heard by a jury or perhaps be decided by just a judge in what’s referred to as a bench trial.
Possible Defenses: Freedom of Speech
What could possibly go wrong if the plaintiff meticulously follows all these steps? A lot. Defamation lawsuits are not slam-dunk deals simply because they can prove the elements. They can count on the defendant raising certain defensive arguments.
The defendant might counter that they have a constitutional right to freedom of speech. This is where that truth element comes into play. A defendant is free to state a fact and is protected from liability when doing so, but nowhere in the Constitution does it say that Americans are free to lie about each other. Proving that the statement was indeed true is considered an affirmative defense to allegations of defamation.
Moreover, the statement doesn’t have to be 100 percent true for this defense to work. It’s a defense if the basic concept of the statement is accurate, even if each and every word is not.
The Requirement of Actual Malice
Some individuals are less protected by defamation laws than others, including politicians, celebrities and others in the public eye. They’re not quite fair game, but they often have to prove additional elements, depending on state law.
For example, a reporter might write that a politician once voted to eliminate all benefits to the needy. Not only must the politician prove in a defamation lawsuit that he did no such thing and that the statement cost him the next election, but he must also establish that the statement was made with actual malice.
This means proving that the defamer knew that the accusation was false and she printed it anyway for the express purpose of costing the politician the election, or that she didn’t care one way or the other if it cost the election. The average citizen doesn't typically have to prove actual malice.
The Concept of Privilege
Remember, one of the elements of defamation is that the statement cannot have been privileged, such as a witness testifying in court, but can extend further. Other circumstances where a statement might be considered privileged include legislative proceedings, conversations between spouses or statements that are printed because they’ve been ordered by law.
If the plaintiff names an ex-employer as a reference on a job application, and the potential employer does indeed contact them only to be told that the individual once stole from the company, this isn’t defamation because it’s a privileged conversation – even if it’s untrue.
But the defense of privilege can be eliminated when actual malice is present. For example, someone speaking a complete lie in court testimony is not protected by privilege if it can be established that they spoke the lie in a direct attempt to unjustly put the other party in jail. Think: “He put a knife to my throat and threatened to kill me,” when, in fact, it can be proved that the individual did no such thing.
Possible Outcomes of a Defamation Lawsuit
One of two outcomes, or possibly both, can result if a defamation lawsuit is successful, and the judge or jury agrees that the plaintiff was indeed defamed.
Monetary damages are common. This is why it’s important to establish just how much the defamatory statement cost. The court can and most likely will order the defendant to reimburse the plaintiff if they win their case.
Punitive damages are possible, too. The defendant would be ordered to pay additional money as punishment for his wrongdoing.
The defendant might also be required to print or circulate the truth, or a retraction, effectively saying, “OK, he didn’t really do this. I was wrong. I lied.”
Ideally, a successful defamation lawsuit will result in both types of damage awards, but suing for defamation can be a complicated, challenging process, so it might help to enlist the help of an attorney.
Read More: Two Types of Defamation
- AllLaw: Evidence You’ll Need to Bring a Defamation Lawsuit
- Novins, York & Jacobus: How Hard Is It to Win a Defamation Lawsuit?
- FindLaw: Libel, Slander, and Defamation Law – The Basics
- FindLaw: Defenses to Libel and Slander
- Oak View Law Group: How Can You Win or Defend a Defamation Suit?
- Legal Information Institute: Defamation
- Electronic Frontier Foundation: Online Defamation Law
- Constitutional defamation (defamation involving public personas or matter of public concern) raise First Amendment issues and require different elements to be proven.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.