In essence, a defamation claim can arise when one person says something damaging about another person. However, if a plaintiff could successfully sue every time his or her feelings got hurt, there would be more defamation cases than the legal system could handle. For this and other reasons, defamation is a complex kind of tort (civil injury). This article discusses the key legal concepts of defamation law, different types of defamation - libel vs. slander - and their essential elements.
The essential harm alleged in a defamation claim is "damage to the plaintiff's reputation in the community." Because reputation is such an intangible thing, and because of the tendency of some people to react strongly to perceived insults, defamation has evolved -- over centuries of legal decisions -- into a complex concept filled with safeguards and requirements that are designed to weed out weak claims.
The right to free speech only adds to the complexity. It may be a common misconception that anyone can say whatever they want (other than shouting "fire" in a crowded theater), but the right to free speech is not an absolute right in all situations. Serious damage to a plaintiff’s reputation can cause real harm to a person's livelihood and well-being, therefore the rules of defamation try to balance protection of reputation with the constitutional rules of freedom of speech.
See this article on the issue of Defamation vs. First Amendment Rights.
There are two kinds of defamation, slander and libel, which are discussed below. The essential elements of either kind are 1) a defamatory statement 2) that is “published” to someone other than the plaintiff and the defendant.
A “defamatory statement” is any statement that an ordinary person would find damaging to their reputation and character. Typically, a judge will determine if the statement is actually defamatory. Only if it is unclear whether the statement is defamatory, either because of the context in which it was made or because of multiple possible interpretations, will the jury be asked to make the assessment.
Before the advent of modern media, there were only two kinds of communication available, spoken and written. Slander pertained to spoken defamation and libel to written. Where defamatory statements published via radio, television or the internet fit into these categories is not a clear-cut matter. For now, it is easiest to think of slander as spoken defamation to a small audience (or just one other person) and libel as any written defamation or spoken or video defamation to a large audience. Generally, it is up to the judge, and not the jury, in a defamation case to determine which category the defamation fits into.
There are two types of slander: slander and slander per se. In the first kind of slander, the plaintiff must prove the defendant made a defamatory statement to at least one other person (i.e. the essential defamation elements) and that the plaintiff suffered what are referred to as “special damages” as a result of the defamation. Special damages are actual harm like loss of customers, being fired, or some other financial harm.
A slander per se claim does not require that the plaintiff prove special damages. This is because slander per se claims involve categories of defamatory statements that are presumed to be damaging to the plaintiff. While the categories may change a little for state to state, and evolve over the years, some of the most common slander per se categories are:
If the defamatory statement falls into the category of libel, the plaintiff only needs to prove the essential elements, i.e. 1) the defendant published a defamatory statement about the plaintiff in written or another form 2) and other people were exposed to the statement. There are no additional requirements because the law presumes that once the publication of a defamatory statement has been made in written or other formats, the statement will remain in the public sphere for a long time and continue to do damage.
Once the plaintiff has successfully proved defamation, "general damages" are presumed. The plaintiff is not simply limited to damages reflecting his or her economic losses, but the mental anguish and other emotional harm that the law presumes to result from having one’s reputation harmed. Depending on what the plaintiff proves about the defendant’s intentions, and the type of defendant, punitive damages may also be awarded to the plaintiff. For more, see our section on damages in a personal injury case.
Generally, if the defendant can prove that what he or she said or published about the plaintiff was true, the plaintiff will lose the case. In the case of defendants like certain media outlets (e.g. newspapers), the plaintiff must prove the statement was untrue -- the media defendant is not required to prove its publication was true to defend the case.
Another defense to defamation is privilege. When the defendant is a certain type of public official or the statement was during certain official proceedings, the statement was “privileged” and therefore the plaintiff cannot successfully sue for defamation.