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What Qualifies As Defamation? An Overview

By
Daisy Rogozinsky
/
May 26, 2022
Last reviewed by
Boruch Burnham, Esq.
/
April 13, 2023

If somebody said something about you that hurt your reputation, you might be able to file a defamation lawsuit. This article will explain what types of statements qualify as defamation.

What Is Defamation?

Defamation is a false statement that causes damage to somebody’s reputation. Most states recognize several kinds of defamation. Libel is defamation in written form, while slander is defamation in spoken form. Recently, the terms internet defamation or online defamation have also been used.

Classifications of defamation include:

  • Defamation per se - Defamatory statements that are so inherently harmful that they are presumed to damage the plaintiff’s reputation such that the plaintiff is not required to prove the statement(s) caused any specific harm. Examples include statements accusing the plaintiff of committing a severe crime, alleging that the plaintiff has a “loathsome disease” (generally defined as a contagious disease that would cause the plaintiff to be shunned or avoided by others, such as leprosy, syphilis, or AIDS), or claiming that the plaintiff engaged in certain forms of sexual misconduct. 
  • Defamation per quod - Defamatory statements that are not inherently defamatory and for which the plaintiff must prove that they suffered actual harm, such as the loss of a job or business opportunities.

 The Elements of a Defamation Claim

To support a defamation claim, a plaintiff must prove several elements. While the number and substance of those elements vary by state, they generally require the publication of a false statement of fact concerning the plaintiff to a third party, either knowing that it was false or with a negligent or reckless disregard as to whether that statement was true.

1. False Statement of Fact

The first element required to establish a defamation claim is to show that the statement was false. By definition, a true statement does not qualify as defamation. There are several conditions involved in determining whether a statement is true or false, including:

  • Substantive truth - If the substance of a statement is generally true yet contains a few inaccuracies, it can still be considered truthful for the purposes of refuting a defamation claim.
  • Opinion – While a statement of someone’s opinion generally cannot be considered false because it is meant to reflect the speaker’s personal belief or point of view, it can still be regarded as defamatory if the recipient can reasonably infer that the opinion was based on facts.
  • Over-generalization - If the defendant makes a statement implying that an act or crime a plaintiff committed only once was repeated on multiple occasions or that it was part of a pattern of behavior, that implication could be considered defamatory. 
  • The speaker’s belief is not dispositive - A speaker’s genuine belief that a statement is true is not always a defense to being held liable for a defamation claim. For example, a journalist can be liable for defamation if they publish an article without exercising reasonable care to determine whether the underlying facts were true.
  • Implication - In some states, defamation can be proven even if the statement was implied, suggested, or insinuated rather than explicitly stated. However, this is difficult to prove because it requires that the plaintiff demonstrate that a reasonable person would have understood the statement as defamatory and that the implication was clear and unambiguous.

2. Of and Concerning the Plaintiff

The next element of defamation is that the statement in question must be connected to the plaintiff. This condition can be met even if the plaintiff is not explicitly identified by name as long as a reasonable person could infer that the statement concerned the plaintiff. Note that only statements about living people can be considered defamation, as one cannot defame the dead.

3. Communicated to a Third Party

For a statement to be considered defamation, it must have been published, communicated to, or read by a third party (referred to as “the recipient”) other than the defamer or the defamed, either through private or public communication. Statements only heard or read by the plaintiff do not qualify as defamation, as they cannot cause reputational harm.

Most of the time, each publication of a defamatory statement can constitute its own defamation action, which is why it’s important not to share defamatory content, as it can, in some instances, make you as liable as the original defamer. However, if a single publication, such as a blog post, is received by multiple third parties at once, it is only considered to have been published once. This way, a plaintiff cannot bring multiple lawsuits for a single defamatory publication.

4. Fault Amounting to at Least Negligence

Next, the plaintiff must demonstrate that the defendant acted with intent when making the defamatory statements. The defendant must have done one of the following:

  • Been negligent concerning the truth or falsity of the statement
  • Acted with actual malice or reckless disregard concerning the truth or falsity of the statement

Publishing a statement knowing it is inaccurate is considered acting with actual malice. If the plaintiff is a public figure in the spotlight who is likely to elicit public scrutiny, many courts will require actual malice or reckless disregard for the truth and not just negligence to prove defamation. This is because public figures have a greater ability to defend themselves from defamatory statements and because of enhanced protections based on the free speech principles supported by the First Amendment, under which people should be able to discuss and debate issues of public importance without fear of being sued for defamation.

5. The Statement Was Not Privileged

There are certain situations in which people are immune from having their statements qualified as defamation, including:

  • Statements made in the context of judicial/quasi-judicial proceedings or executive actions.
  • When there is a public interest in allowing someone to speak freely, such as statements made by journalists or whistleblowers, as long as the statements were made in good faith and in the public interest.

6. Causing Damage to the Plaintiff’s Reputation

As mentioned above, in defamation per quod cases, specific and quantifiable losses caused by the defamatory statement must be proven, whereas in defamation per se cases the reputational harm is presumed. 

There are three main categories of defamation damages available for recovery (subject to state variances):

  • Compensatory - This type of damages reimburses a plaintiff for the harm they suffered. This can include not only monetary damages for lost income but also non-economic damages for emotional distress.
  • Punitive - This type of damages can be awarded in cases where the defamation was especially malicious, egregious, or wanton and is intended to punish the defendant for an act the court wants to discourage.
  • Nominal – This type of damages is usually awarded when the plaintiff is clearly the victim of defamation but cannot prove the amount of damages they suffered. These are often rewarded when the defamation involves a violation of free speech.

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