Defamation occurs when someone makes a statement about someone else that is false, and the false statement causes injury to the other person. While not every false, damaging statement is defamation, if the statement does rise to that level, it will fall within one of two broad categories: libel or slander.
General Defamation Requirements
For a statement to be defamatory under the law, it must be published to a third party, it must be false, it must cause damage to the person that is its subject and the speaker or writer must be unprotected by a defamation privilege.
A False, Published Statement
The first hurdle to clear for a defamation claim is to prove that a statement was published, and the second is to prove that it was false.
A statement is published if it is told to someone else, either out loud or in writing. In other words, it was made public.
A statement is false if it is objectively untrue and intended to create a false impression, either negligently or maliciously. Opinions typically cannot be considered defamatory; for example, a corporate CEO who tells her assistant this his sweater is ugly in front of the whole office is not defaming him because it is a subjective opinion.
Damage to Reputation: Actual Injury Required
A statement must cause injury before it can be considered defamatory. A person may be injured by defamation if the defamatory statement causes him to lose his job, or if someone who hears the defamatory statement, believing it to be true, attacks him physically or causes him emotional damage such as a spouse filing for divorce or causing his children to be taken from him.
Privilege Against Defamation Claims
In certain situations, a speaker is privileged against a defamation claim. That is, the person speaking cannot be sued for defamation in that context. Examples of defamation privileges include:
- Legislators who make statements on the floor or in written materials.
- Witnesses in a lawsuit, who are privileged for false testimony.
- Someone who makes a defamatory statement to her spouse about someone else.
- Statements by high government officials such as the U.S. President.
- True statements, which are always privileged. There can be no defamation if the statement is objectively true.
Statements made in these contexts cannot be used as the basis for a defamation lawsuit. There are other privileges available that are more limited, and state laws vary.
Libel: Written Defamation
Libel is defamation that is written down, whether in a book, a newspaper, a magazine or online. Even a private letter written to a third party about someone else can be a form of libel because it is being published to that third party.
Slander: Oral Defamation
Slander is defamation that is spoken out loud. It can be a statement made to one person only that causes injury, or to a hundred people over a loudspeaker. As long as it meets the defamation requirements, a statement can be slanderous.
Read More: How to File a Defamation of Character Lawsuit
Examples of Defamatory Language
Certain types of statements are automatically considered harmful enough to be defamation in most states, and these include:
- Statements that allude to the subject having committed misconduct at work such as a statement that a lawyer is stealing money from her clients.
- Statements that someone has committed a crime.
- Statements that someone has a "loathsome disease" such a sexually transmitted disease or something highly contagious and dangerous.
- Statements that someone has engaged in sexual misconduct or is promiscuous.
The two kinds of defamation are libel, which is written defamation, and slander, which is oral defamation.
Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.