What is defamation law?

Defamation Law falls under Tort Law. It refers to false statements about a person, communicated as fact to one or more other persons by an individual or entity (such as a person, newspaper, magazine, or political organization), which causes damage and does harm to the target's reputation and/or standing in the community. Defamation is addressed primarily by state legislation. However, Constitutional Law may also apply, as the right of freedom of speech also extends to certain defamation claims. Defamation is categorized as either Slander or Libel.

The general harm caused by defamation is identified as being ridiculed, shamed, hated, scorned, belittled or held in contempt by others, and lowers him/her in esteem of a reasonably prudent person, due to the communication of the false statement. This tort can result in a lawsuit for damages. Many states have statutes requiring that the allegedly damaged party must first demand a printed retraction of the defamatory statement, before they may proceed to court. If the plaintiff proceeds with a lawsuit without first seeking the retraction or if he/she receives a retraction but proceeds anyway, most states will limit the damages they may pursue to the actual or special damages they experienced, such as loss of employment or wages.

Malice - if intentional malice can be shown/proven, than the act usually qualifies as defamation for damage to one's reputation. However, even without this, if it is obvious that the statement would do harm and that it is untrue, one can still pursue this tort if he/she can demonstrate actual/tangible harm, such as loss of business (called special damages).

Libel is defamatory statements and/or pictures published in print or writing; or broadcast in the media, such as over the radio, on TV or in film. The publication does not need to be made to more than one person to qualify as libel. However, it must be represented as a fact, not an opinion. If one libels the reputation of a deceased person, the target's heirs may be able to bring an action for damages.

Oral defamatory statements are categorized as slander. Damages for slander are generally more difficult to identify and prove; although when malice is involved, it can be easier to accomplish. These statements must also be represented as fact, rather than just an opinion, to be considered slanderous. Slander of title refers to a remark regarding property ownership which maligns the owner and his/her ability to transfer the property, and results in a monetary loss.

Defamation Per Se refers to defamatory statements that are so vicious and the harm is so obvious, that malice is assumed, and proof of intent is not required for general damages (i.e. falsely accusing someone of committing a crime involving immorality; claiming someone has a repugnant, contagious disease; or statements claiming that the individual is unfit or unable to perform his employment duties.) Most states specifically recognize these categories of false statements as defamatory per se. Libel per se is also referred to as libel on its face, meaning it meets all the required elements without further proof. Defamation Per Quod is the opposite of per se, in that it is not obvious and extrinsic proof is required to demonstrate that the communication was damaging.

Exclusions/Exceptions/Defenses to defamation

• "fair comment" - a statement of opinion which was arrived at based on accurate facts, which do not allege dishonorable motives by the person about whom the statements were made.

• Statements made about a public person (political candidates, governmental officeholder, movie star, author, celebrity, sports hero, etc.) are usually exempt, even if they are untrue and harmful. However, if they were made with malice - with hate, dislike, intent and/or desire to harm and with reckless disregard for the truth - the public person may have a cause of action. This was determined by the U.S. Supreme Court and has been re-interpreted various times.

• Minor errors in reporting, such as publishing a person's age or title inaccurately or providing the wrong address.

• Governmental bodies due to the premise that a non-personal entity cannot have intent.

• Public records are exempt from claims of libel.

• Truth - the communication was true.

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