What Qualifies As Defamation? An Overview

By Daisy Rogozinsky
May 26, 2022

If somebody said something about you that hurt your reputation, you may be able to file a defamation lawsuit. In this article, we’ll explain exactly what type of statements qualify as defamation.

What Is Defamation?

Defamation is a false statement that causes damage to somebody’s reputation. There are several kinds of defamation recognized by most states. Libel is defamation in written form while slander is defamation in spoken form. Recently, the terms internet defamation or online defamation have also come into use. 

Classifications of defamation include:

  • Defamation per se - Defamatory statements that are so damaging that the victim is automatically assumed to have suffered harm as a result of the statement. These include statements accusing the plaintiff of committing a crime, alleging that the plaintiff has a disease, claiming that the plaintiff engaged in sexual misconduct, or stating that the plaintiff has acted unethically in their job, for example. 
  • Defamation per quod - Defamatory statements that are not inherently defamatory but become defamatory because of the context

For both defamation per se and defamation per quod, the plaintiff must provide evidence of harm. 

The Six Elements of Defamation

In order to prove defamation in a court of law, a plaintiff must provide evidence of the following six elements.

1. False Statement of Fact

The first requirement for proving defamation is to show that the statement at hand was false. By definition, a true statement does not qualify as defamation. 

There are several conditions involved in determining whether a statement was true or false, including:

  • Substantive truth - If the substance of a statement is true but it contains a few inaccuracies, it can still be considered truthful for the purposes of a defamation claim.
  • Opinion - An opinion cannot be considered false. So the only way a statement of opinion can be defamatory is if the recipient could have reasonably inferred that the opinion was based on fact.
  • Over-generalization - If the defendant makes a statement implying that a behavior or crime a plaintiff committed only once was repetitive, the statement is considered untruthful. 
  • The speaker’s belief - A speaker’s belief that a statement is true is not enough to protect them from a charge of defamation. 
  • Implication - In some states, defamation can be proven even for a statement that was only implied. However, this is difficult to successfully prove.

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 would understand the statement to be about the plaintiff. 

If a statement identifies one or more individuals in a group, then they might have grounds for a group defamation claim. Usually, groups of 25 people or fewer can bring a group defamation claim.

Note that only statements about living people can be considered defamation, as you cannot slander 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 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 harm their reputation. 

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 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 with regard to 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 about it to prove defamation. This is because public figures have a greater ability to defend themselves from defamatory statements, and because of the belief that the general public should be able to freely discuss matters of public concern.

5. The Statement Was Not Privileged

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

  • Judicial proceedings
  • Executive actions
  • Quasi-judicial proceedings
  • When the audience is limited in size
  • When there is a public interest in allowing someone to speak freely, even at the risk that the information may not be entirely accurate

In most cases, the latter two points will only apply when the statement is made in good faith, such as a witness giving a statement to the police when reporting a crime. 

6. Causing Damage to the Plaintiff’s Reputation

Finally, a plaintiff must prove that the harm to his or her reputation resulted in damages. In defamation per quod cases, damages must be specifically identified and quantified.

There are three main categories of defamation damages available for recovery:

  • Compensatory - This type of damages reimburses a plaintiff for the harm they suffered
  • Punitive - This type of damages are reserved for defamation that 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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