Defamation occurs when a person publishes a statement that tends to injure the reputation of another and exposes that person to public hatred, contempt, or ridicule. If the defamatory publication is written, it is classified as libel. If it is spoken, it is slander. To hold a person liable for defamation, four things must provable in court:
- A false and defamatory statement was made concerning the harmed party;
- The statement was not privileged;
- The statement was either negligently or maliciously made; and
- The person was or will be injured financially.
In determining falsity, courts will overlook minor inaccuracies in a statement. Furthermore, opinions are generally not considered defamatory. The test to determine if a statement is an opinion is whether the statement can be proven true or false. A statement is privileged if (1) the statement was made pursuant to a legal contract, or (2) if the statement was made while filing a lawsuit, or (3) if the statement was necessary to carry out a routine act associated with a legitimate concern of their business. For example, filing a frivolous claim is generally not considered libel. Likewise, internal communications of company employees discussing a person’s suitability for a position would not be libelous if it was necessary for the employees to have the discussion. This allows individuals to discuss matters legitimately related to business concerns without the fear of defamation. A great example of this would be where a person lists an employer as a reference. If the old employer tells the new employer that the employee was lazy, and believed that this was a true statement, then the old employer would generally not be liable because the statement was privileged. However, even if a statement is false and no privilege exists, the person making the statement must have made the statement with some degree of fault. In the landmark case of New York Times v. Sullivan, the United States Supreme Court weighed the right to free speech against an individual’s right to not be defamed. The Court recognized that defamation claims could have a chilling effect on free speech. For example, if a whistle blower couldn’t make a statement without the fear of defamation, then it is unlikely that whistle blowers would come forward. Thus, the Court found that the more important the topic was to the public at large, the stronger free speech rights became. Consequently, after New York Times, where the Plaintiff is either a public figure (a politician or famous person) or where a private individual put himself in the middle of a controversy important to the public, then actual malice (or actual intent to harm) must be shown. However, if the Plaintiff is not a public figure or was not involved in a public controversy, then only negligence must be shown. Finally, the statement must harm the Plaintiff in some way. However, in certain circumstances, harm can be presumed based on the statement alone. This is called “defamation per se.” Statements within this category include stating that a person committed a crime, had a contagious disease such as aids, stating that a person was sexual immoral, charging a person with some form of professional incompetence, or making statements that cause a person to suffer a loss of money or loss of business advantage. Where “per se” liability is not present, then the plaintiff must show some special damages. These damages are generally considered financial losses; however, they could also include the goodwill of a business or social harm. A Rumph Childers, we understand the issues surrounding defamation. They can be extremely complicated. If you believe you have been defamed, or have been accused of making a defamatory statement, we will be happy to review the factual circumstances of the statement to help you understand your legal rights. Contct us, our initial consultation is always free.