Defamation Law: Legal Elements of Libel and Slander

Learn the basics of defamation law, and what goes into a valid claim for libel or slander.

Defamation is a complex kind of tort case (a civil lawsuit seeking compensation for harm). In simplified terms, a defamation claim can arise when one person makes an untrue factual statement about someone else. However, if a plaintiff could successfully sue every time his or her feelings got hurt, there would be more defamation lawsuits than the legal system could handle, so it's not quite that simple. This article discusses the key legal concepts behind defamation cases, the different types of defamation (libel and slander), and more.

Defamation, Harm to Reputation, and Free Speech

The essential harm alleged in a defamation claim is often defined as something along the lines of "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 designed to weed out weak or even frivolous 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 their livelihood and well-being, so the rules of defamation try to balance protection of reputation with the constitutional rules of freedom of speech. Learn more about defamation and First Amendment rights.

The Essential Elements of Defamation

The two kinds of defamation (slander and libel) are discussed below. The essential elements of either kind typically include 1) a defamatory statement 2) that is "published" to a third party (someone other than the plaintiff and the defendant).

Defamation laws vary from state to state, but a "defamatory statement" is usually defined as one 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.

Slander Versus Libel

Before the advent of modern media, there were only two kinds of communication: 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 may be easiest to think of slander as spoken defamation to a small audience (or just one other person) and libel as any written/posted 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 a certain statement fits into.

Elements of Slander

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 from state to state, and evolve over the years, some of the most common slander per se categories are:

  • imputing criminal conduct to the plaintiff
  • saying that the plaintiff has certain types of communicable diseases, and
  • any harmful statement about the plaintiff's profession or business.

Elements of Libel

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 and 2) 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 harm.

Defamation Damages

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 distress that the law presumes to result from having your 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. Learn more about calculating damages in a defamation case.

Defenses to a Defamation Claim

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 made during certain official proceedings, the statement may be "privileged," and therefore might not form the basis of a defamation lawsuit. Learn more about defenses to a defamation lawsuit.