Defamation of Character

“Defamation of character” broadly refers to any remark that impairs an individual’s reputation. “Libel” is the term used to denote written defamation, whereas spoken defamation is known as “slander.” Since written defamation can persist over time, it is often viewed as more damaging than slander by many courts and insurance companies.

Types of Defamation of Character

Libel: A type of defamation that involves the making of false and damaging statements about someone in written or printed form, including digital and online media. It refers to statements or visual depictions that falsely represent a person in a way that harms their reputation.

What is Needed to be Considered Libel?

Slander: Slander is a form of defamation that involves the making of false spoken statements that harm the reputation of an individual.

What is Needed to be Considered Slander?

Defamation doesn’t qualify as a crime in the majority of states but it does constitute a “tort” (a civil offense as opposed to a criminal one). The person who has suffered the defamation, termed as the “plaintiff,” has the right to bring a lawsuit against the individual responsible for the defamation, referred to as the “defendant,” seeking damages.

The principles of defamation law strive to strike a balance between conflicting priorities: On one side, it aims to protect individuals from the harmful impact of false statements, but on the flip side, it also seeks to safeguard the freedom of speech, so people don’t constantly live in fear of lawsuits over every controversy, argument, or error. Healthy political and social discourse is crucial for a democratic society, and it’s understood that we may not always agree on all topics. For instance, political rivals often draw diametrically opposed conclusions from the same set of facts, and editorial cartoonists frequently amplify facts to emphasize their points.

How Can You Prove Defamation?

Defamation occurs when an individual disseminates a false assertion—either spoken or written—concerning another individual, consequently causing harm to the latter’s reputation. This harmful action can take two forms, libel or slander, depending on the medium through which the false information is conveyed. Libelous acts are those that involve written or printed defamatory statements, whereas slanderous acts consist of spoken defamatory remarks.

Though defamation laws exhibit variations from one state to another, the fundamental tenets underpinning defamation law retain uniformity across all states. These foundational elements serve as the standard, guiding the legal parameters for defining and prosecuting defamation. This consistency ensures a universally acceptable framework to determine cases of character defamation and its resulting consequences, irrespective of jurisdictional variations.

For a plaintiff to successfully mount a defamation lawsuit, they are ordinarily required to establish the following elements as the basis of their claim:

  1. Publication of a statement by the defendant: This means that the defendant must have communicated or circulated the defamatory statement to at least one person other than the plaintiff. It doesn’t have to be published in the traditional sense—it’s enough if the statement was conveyed to a third party.
  2. The statement was false: The plaintiff must be able to demonstrate that the defamatory statement was indeed false. The truth is generally an absolute defense to defamation claims. Therefore, if the defendant can prove that the statements made were factually accurate, then the defamation claim would not stand.
  3. The statement was injurious: The statement must have caused some form of harm or damage to the plaintiff’s reputation. This could include economic harm, such as loss of business or employment opportunities, or non-economic harm, such as mental distress or damage to the person’s social relationships.
  4. The statement was unprivileged: Certain statements are granted privilege under law, such as those made in courtrooms during legal proceedings or by lawmakers during legislative debates. If a statement is privileged, it cannot form the basis for a defamation claim, regardless of its falsity or harmfulness. Thus, the plaintiff must show that the defamatory statement was not made under circumstances where it would be privileged.

By proving all these elements, a plaintiff can potentially succeed in their defamation claim, warranting legal remedies including but not limited to monetary damages, cease and desist orders, or retractions.

The involvement of a third-party witness can be pivotal in establishing a defamation claim. Defamation, by definition, requires the dissemination of a false statement to someone other than the individual being defamed. As such, a third-party witness who has received or heard the defamatory statement can serve as critical evidence that the statement was indeed ‘published’ or communicated, fulfilling a crucial legal requirement for a defamation claim. Further, this witness might provide essential context or details about the circumstances surrounding the statement, which can influence the interpretation of intent or the perceived harm caused. They may also be able to corroborate the falsehood of the statement and the impact it had on the reputation of the person defamed.

How Long Do Defamation Cases Take?

Generally speaking, the duration of a lawsuit can range widely—from a mere few months to several years. Drawing from our experience, we’ve observed that the majority of defamation lawsuits span between one and three years.

If a case is uncontested, the resolution usually falls within a timeframe of six (6) to twelve (12) months. However, in instances where the case is strongly contested or involves complex issues, it is expected that the case may take a few years to reach its ultimate resolution, which could be in the form of a settlement, trial verdict, or judgment.

In the following section, we will outline a standard timeline for a defamation case. It’s important to understand that this serves merely as an approximation and may not precisely align with every individual case.

How Long Do You Have to Make a Defamation Case

Each state establishes a specific timeframe—termed the statute of limitations—within which various types of civil lawsuits must be initiated. In most jurisdictions, this period for defamation lawsuits ranges from one to three years, counting from when the defamatory statement was uttered or published.

Should you fail to adhere to this deadline in filing your suit, it is highly likely that the court will dismiss your case outright. Consequently, you risk losing the opportunity to rectify your tarnished reputation, and to seek compensation for the harm and lost prospects that resulted from the defamatory act.

Examples of Defamation:

  • Misleading posts, comments, statuses, and profiles crafted on social media platforms like Facebook or Twitter with the intent to harass individuals and businesses.
  • Fabricated reviews and ratings on consumer review websites like Yelp and Google, which are not grounded in a genuine customer experience.
  • Untrue public shaming posts and reports on websites designed to expose cheaters, accusing individuals of misconducts such as infidelity, predatory behavior, or criminal activities.
  • Incorrect information, narratives, and identifications disseminated through news articles and media publications.
  • False allegations of unethical or dishonest behavior, causing harm to one’s reputation.
  • Defamatory content stemming from bullying activities, potentially damaging an individual’s public image.
  • False social media accusations of a peer involving sexual misconduct.
  • Accusing a restaurant owner of inducing food poisoning in a baseless Yelp review.
  • Writing a misleading letter to an editor, claiming that the president of the parent-teacher association embezzled funds from the school.

Skip to Famous Defamation Cases

Defenses Against Defamation

Navigating defamation claims is a complex process, and establishing their validity can be challenging. This complexity stems from the need for defamation laws to delicately balance two key principles: the protection of individuals’ reputations and the preservation of the free flow of information, ideas, and perspectives.

It’s worth noting that a substantial number of defamation cases may not reach the courtroom. This is often because, during the discovery phase of the litigation process, the truth behind the alleged defamatory statement might surface. The revelation of such truth can render the defamation claim null, as truth is a fundamental defense in defamation cases.

If you find yourself the defendant in a defamation lawsuit, you can protect yourself if the statement you made was:

  1. Factual or true: Truth is an absolute defense in a defamation lawsuit. If the information you shared is true, it cannot be classified as defamatory, no matter how damaging or unflattering it might be.
  2. An expression of opinion: If the statement is genuinely an opinion, as opposed to a statement of fact masquerading as an opinion, it is generally protected from defamation claims.
  3. Privileged: There are certain situations, such as statements made in court or in legislative bodies, where statements are protected by privilege. This protection can sometimes extend to the media reporting on these statements.
  4. Retracted: Some jurisdictions provide for reduced damages, or even dismissal of the case, if the defendant promptly corrects or retracts the defamatory statement.

Should You File a Defamation Suit?

When considering whether to file a defamation suit, it’s important to understand that the process can be complex, costly, and time-consuming. The Iowa Libel Research Project, initiated by professors Gilbert Cranberg, John Soloski, and Randall P. Bezanson in the 1980s, provided significant insights into the outcomes and motivations behind such lawsuits. This comprehensive study, which involved extensive interviews with both plaintiffs and defendants, found that nearly 90% of libel litigants lost their cases in court. Even when victorious, the awarded monetary damages were generally quite modest.

However, many plaintiffs still felt a sense of accomplishment even if they did not win. As Bezanson pointed out, libel suits often serve as a tool for self-help, legitimizing their claims of falsehood irrespective of the legal outcome. The act of filing a lawsuit can be seen as a way to restore one’s reputation, correct false information, or even seek retribution.

Interestingly, the researchers found that most plaintiffs first reached out to the media outlet before consulting a lawyer, usually driven by a sense of “indifference, arrogance or insensitivity” from the media organization. Upon encountering resistance, they then sought legal representation.

Is it Worth Suing for Defamation?

When a legitimate defamation case arises, it typically results in some form of damage, which can be financially compensated through a civil litigation process across different jurisdictions.

A plaintiff may be eligible to receive damages under one of the following categories:

  1. General Damages: This category covers non-monetary losses such as damage to reputation, distress, embarrassment, and public humiliation.
  2. Special Damages: This category includes monetary losses directly linked to the defamation, such as harm to property, business, profession, or disruption of business relationships.
  3. Punitive Damages: Punitive damages are additional awards intended to punish the defamer for their malicious actions or ill intent. Awarding of these damages lies in the discretion of the judge or jury, and they often act as a significant deterrent against future defamatory acts.

These financial compensations serve to make amends for the distress, anger, and inconvenience incurred due to a defamatory statement. The pursuit of a defamation lawsuit, therefore, can be beneficial not only for immediate financial recovery but also as a safeguard against future defamation attempts aimed at you or your business.

It’s important to note, however, that the settlement amounts can greatly vary, from as low as $1 when the emphasis is more on publicizing the truth, to enormous sums like in the case of Alex Jones, who was mandated to pay a staggering $965 million for spreading false conspiracies about the mass shooting at Sandy Hook Elementary school in what stands as the highest defamation settlement to date.

What is Defamation Per Se?

Defamation per se pertains to certain false statements that are so inherently harmful, they’re considered defamatory without the need for further explanation. In many states, this classification of defamation is interpreted rather extensively, encompassing anything that is overtly damaging. However, in many other jurisdictions, defamation per se is limited to false allegations against you or your business involving:

  1. The commission of a crime.
  2. Having a contagious disease, specifically a sexually transmitted one.
  3. Being unqualified or incompetent in a particular trade, business, or profession.
  4. Allegations related to a person’s sexual conduct, such as impotency or unchastity.

What is Defamation Per Quod?

In contrast to defamation per se, there is also defamation per quod. This type of defamation involves statements that aren’t explicitly damaging on their surface but necessitates proof to establish their defamatory nature and the special damages it imposed on you or your business.

Special damages typically consist of, but aren’t limited to:

  1. The loss of profits.
  2. The termination or harm to business relationships.
  3. Interference with contractual relationships.
  4. A decrease in business traffic.
  5. Detrimental employment consequences.

What is Needed to be Considered Libel?

The key components of libel include:

  1. A false statement presented as a fact: The statement must be false. If the statement is true, it’s not considered libel, even if it’s damaging to the individual’s reputation.
  2. Published or communicated to a third party: The statement must be made public. This doesn’t necessarily mean it has to be widely circulated; if it’s communicated to even a single person other than the subject, it qualifies as being published.
  3. The statement directly caused harm or damage to the subject’s reputation: It’s crucial that the plaintiff can demonstrate some sort of harm was caused, such as loss of business, emotional distress, or harm to their reputation.
  4. The statement was made negligently or maliciously: The person making the statement did so without proper consideration for the truth, or they knew the statement was false and made it with the intent to cause harm.

Libel laws vary by jurisdiction, so what constitutes libel can differ between locations. However, these are the general principles that most jurisdictions follow.

What is Needed to be Considered Slander?

  1. False Statement: The statement must be false. If the assertion is true, it can’t be considered slanderous even if it negatively impacts someone’s reputation.
  2. Communication to a Third Party: The false statement must be orally communicated or spoken to a third party, i.e., to someone other than the person it defames.
  3. Damage: The statement must cause damage to the individual’s reputation. The person being slandered must usually be able to prove that the slander caused a material or reputational harm, such as loss of job, loss of business, public humiliation, or mental anguish.
  4. Negligence or Malice: The person making the statement did so with a negligent disregard for the truth, or with knowledge that the statement was false and intending to cause harm.

It’s important to note that laws around slander can vary by jurisdiction, so what is considered slanderous might differ from place to place. However, these are generally the elements that most legal systems require for a statement to be considered slanderous.

What is the Actual Defamation of Character Law?

Historically, the tort of libel was managed under state law. State courts typically adhered to the common law principles of libel, permitting the retrieval of damages even in the absence of concrete evidence of harm. According to these traditional libel regulations, harm was inferred merely from the act of publication. However, since the 1960’s the U.S. Supreme Court in multiple cases has held that the First Amendment, which safeguards the right to freedom of speech, restricts a State’s capacity to distribute damages in libel lawsuits. This indicates that the constitutional protection of expressive freedom has implications on the procedures and outcomes of defamation suits, creating a balance between individual reputational rights and public communication rights.

New York Times Co. v. Sullivan (1964): The Supreme Court established the requirement of actual malice for libel suits involving public officials or matters of public concern. The Court underscored the First Amendment’s protection of speech related to public concerns, outweighing the state’s interest in awarding damages for reputational harm.

Curtis Publishing Co. v. Butts (1967): The Supreme Court extended the “actual malice” requirement to public figures in addition to public officials. This verdict clarified that well-known individuals also had to prove libelous claims against them were intentionally harmful.

Gertz v. Robert Welch, Inc. (1974): The Court ruled against extending the actual malice standard to libel cases involving private individuals and matters of public concern. While the Court acknowledged the state’s interest in compensating individuals for reputational damage, they insisted on proof of actual injury. Punitive or presumed damages are only permissible with evidence of malice.

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985): The Court ruled that libel actions involving private individuals and matters of purely private concern could result in punitive or presumed damages, even without proof of actual malice. The ruling affirmed that the First Amendment does not prohibit such damages as long as the defamatory statements are not of public concern.

State Specific Elements

Anti-defamation laws differ significantly across states, leading to varying interpretations and applications of defamation laws by courts in different jurisdictions. For example, in the case of Davis v. Boeheim, a New York state court case, the court established that the determination of a defamation claim’s validity hinges on whether the “contested statements are reasonably susceptible of a defamatory connotation.” However, as indicated by the ruling in the Davis case, courts acknowledge the plaintiff’s right to pursue legal remedies. Consequently, many courts avoid dismissing a case for not stating a claim, provided the plaintiff’s pleadings satisfy the “minimum criteria needed to avert dismissal.” This phrase is used again in the case of Jacobus v Trump.

Some states automatically regard specific claims as defamatory if proven false, such as allegations of criminal activity or corrupt practices. Differences also exist in how states handle damages for defamation. While some limit awards primarily to actual damages resulting from the defamatory statements, others allow criminal liability for certain types of defamatory remarks. For publishers, some states provide the opportunity to diminish damages by publishing a retraction of the defamatory content.

Private vs Public Defamation Elements

The criteria for determining fault in defamation cases can hinge significantly on whether the defamed party is a private or public figure. In instances where a private figure is defamed, the standard for assessing the defendant’s fault is less stringent. The crux here lies in whether the defendant was negligent when determining the veracity of the statement before its dissemination. If it is determined that a reasonably cautious individual would have exerted more effort in verifying the statement’s truthfulness, the defendant could be deemed at fault and hence liable for defamation.

Conversely, when a public figure is the subject of a false statement, the standard of “actual malice” comes into play. In this context, a defendant can only be held liable for defamation if they knowingly promulgated a false statement or acted with reckless disregard concerning the statement’s truth or falsehood. This standard makes it considerably more challenging for public figures to successfully assert a libel or slander claim.

Famous Examples of Defamation Cases

Cameron Diaz: The renowned former American actress and model, Cameron Diaz, launched a defamation suit against the British tabloid, “The Sun”. The tabloid had published an article suggesting Diaz had abandoned pop artist Justin Timberlake for a married man. In a decisive ruling, the judge sided with Diaz, obliging “The Sun” to issue a public apology and award Diaz an undisclosed sum in damages for tarnishing her image.

Russel Brand: Following in Cameron Diaz’s footsteps, British comedian Russell Brand found himself at the center of a defamation case. He lodged a lawsuit against the same British tabloid, “The Sun”, which published an article alleging Brand had been unfaithful to his then-girlfriend, Jemima Khan. Brand described the article as “distressing, hurtful, and damaging.” The case was heard in London’s high court, which ruled in favor of Brand. The court ordered the publisher to issue an apology and pay Brand an undisclosed compensation amount.

Tom Cruise: Renowned Hollywood actor Tom Cruise emerged victorious in a defamation case against an adult film actor who falsely claimed to have had an intimate affair with the superstar and even purported to possess explicit video footage of their encounters. Cruise initiated legal proceedings against him for propagating the fallacious narrative. Upon establishing the falseness of the story, the court ruled in Cruise’s favor, granting him a $10 million settlement.

Johnny Depp & Amber Heard: The recent high-profile defamation case between Amber Heard and Johnny Depp garnered much public attention. Amber Heard entered into a legal settlement with her former husband, actor Johnny Depp, after he sued her for defamation. This followed Heard’s insinuation of abuse by Depp in a 2018 op-ed for The Washington Post. Previously, the court had ordered Heard, 36, to pay Depp, 56, in excess of $10 million in damages. In a twist of events, Depp was instructed to pay Heard $2 million in response to her countersuit alleging defamation, which stemmed from Depp’s lawyer, Adam Waldman, denouncing her abuse claims as a “hoax”.