Defenses to Libel and Slander

Libel and slander are two kinds of defamation. Defamation happens when an individual makes false statements about another individual or business that causes an injury. Libel includes statements made in a printed publication, whereas slander encompasses spoken words.

Although the law seeks to provide remedies to those harmed by others, the Constitution also delivers specific protection. Thus, the First Amendment guarantees of free speech can complicate defamation cases.

What Is Freedom of Speech?

Freedom of speech in the United States is guaranteed by the First Amendment to the U.S. Constitution. The First Amendment states that Congress cannot make laws that shorten the freedom of speech. A typical misperception is that the First Amendment bans the right of everyone and anyone to limit the speech of others. This is not the case.

The First Amendment limits the ability of the U.S. federal government and the governments of states, counties, and municipalities to censor speech. For example, a person’s employer can still set criteria for speech in the workplace. Newspapers and other media outlets, for the most part, set their criteria for what they will and will not publish. There are even some restrictions on the freedom of speech that governments can put in place.

What Are Defamation Laws?

The term “defamation” refers to making wrong and antagonistic statements about someone else, either through written or spoken word. As an area of law, defamation works to fix circumstances in which someone’s words cause harm to someone else’s livelihood or standing. A person who has experienced defamation, or has been defamed, may sue the person responsible for the defamation in a civil court.

Defamation of character is an umbrella term for any comment that damages another individual’s reputation. In the United States, laws are in place to prevent individuals from ruining other individuals’ lives regarding careers, reputations, and personal life. Nonetheless, citizens can speak freely about one another without fear that they will get pulled into court for litigation. Defamation laws try to balance this freedom of speech.

What Are the Defenses to Defamation?

Several defenses prevent liability for slander or libel”:

• Truth: If the statement is true, there can be no claim for libel or slander. A “reasonable belief” that the statement is true will also be a victorious defense in many courts. However, other courts will demand higher degrees of care when determining whether a statement is true.
• Opinion: A statement made as an opinion cannot be deemed defamation in most places as long as it is not offered as a fact.
• Privilege: Comments made in court by witnesses, lawyers, or judges and comments made during government proceedings are usually deemed privileged and cannot be subject to defamation claims.
• No Actual Harm: A defendant could also contend that the statement did not harm the individual. Harm is part of the definition of defamation, so if the individual’s reputation is not harmed, there is no slander or libel. For instance, a ridiculously false statement believed by no one cannot provide recovery for defamation.

Moreover, public figures bringing lawsuits for slander or libel must establish that the statement was made with the knowledge that it was false or with reckless disregard for the truth. This standard also applies when a private individual seeks to sue a journalist. This creates a more heightened standard of proof for public figures and private persons seeking to sue reporters.
Additionally, technology has raised some interesting points. For instance, federal courts have deemed a blogger does not qualify as a media person for the higher standard of proof.

What Is the Difference Between Libel and Slander?

Written defamation, such as defaming someone in a book or newspaper, is libel. This definition of libel can also extend to cover companies, not just people. Additionally, libel can refer to visual depictions and published comments made on radio, audio, and video.

Libel is considered to be damaging to a person’s reputation because large amounts of individuals can read defaming information. To recover for libel, the false statement must harm the other person’s reputation, as opposed to being merely insulting or offensive.

Spoken defamatory words are called slander. Slander involves the oral “publication” of defamatory remarks that a third party hears. The difference between libel and slander lies in the method of publication. Lately, it has been determined that there are few differences between the two terms. The Illinois Supreme Court explained in the Bryson v. News America Publication, Inc. case that “libel and slander are now treated alike, and the same rules apply to a defamatory statement regardless of whether the statement is written or oral.”

Why Does the Distinction Matter?

Because defamation in the form of libel is generally more damaging than slander, courts typically look at libelous claims as more serious. In some cases, the distinction between libel and slander is less clear. If the defamation is more enduring, such as an article or a recording, it is more likely that a court will deem it libel.

This distinction matters because, in many cases, it comes down to damages. If a plaintiff can demonstrate that a statement was libelous “on its face,” damages are presumed. Establishing actual specifics and the amount of loss (special damages) is unnecessary. Yet, if the statement was slanderous, it is very likely that the plaintiff will have to prove special damages.

Generally speaking, libel and slander are civil claims. Some states do acknowledge an action for criminal defamation. Most state criminal libel statutes recognize statements that cause a breach of the peace and may criminalize published statements that are dishonest or expose someone to hatred, mockery, and contempt.

Libel claims may be brought by living individuals and legal entities, such as corporations and unions. This definition extends to any entity considered a “person” under the law. Governmental entities cannot bring a lawsuit for libel, but government officials can if comments were directed towards the official separately.

Proving Defamation Through Libel or Slander

States’ laws regarding proving defamation through the legal theories of libel or slander differ. Nevertheless, there are some general rules that a person must prove to show that a statement made was defamatory. Again, the false statement must harm the other person’s reputation, as opposed to being just insulting or offensive.

A statement may be considered defamatory if the statement was:

• Published: Under legal definitions, “statement” refers to something that can be spoken, written, pictured, or motioned. A published statement means that a third party saw or heard the statement, but it does not necessarily mean it was printed in a book or magazine. This definition includes radio, speeches, television, social media, or even loud conversation;
• False: Defamatory statements must be objectively false. This is because true words are not thought to be damaging to others.;
• Injurious: The plaintiff must prove that the statement harmed them somehow. An example of this would be if they lost work because of the statement, or they were ignored and ridiculed by neighbors because of defamatory remarks; and
• Unprivileged: The defamatory statement must also be unprivileged. This means that in some cases, such as witnesses testifying in court or lawmakers making statements in the legislative chamber, they are not to be held responsible for any statements that would otherwise be defamatory.

You must document all of the details if you think a person has committed libel against you to prove the above criteria.

Do I Need a Lawyer?

If you think that you have been a victim of libel or slander, an experienced personal injury lawyer can advise you of your rights and help you with the complex process of filing a lawsuit.

If you have been charged with libel or slander, an attorney can help you determine any defenses that might be applicable.