Difference Between Defamation, Slander and Libel

January 21, 2020 2:51 pm Published by

What Is the Difference Between Defamation, Slander, and Libel?

Reputation is critical in business and social relationships, and digital technology creates greater opportunities to post information about companies, reviews of services, and personal opinions related to a person or company. However, business owners have the right to sue for defamation, libel, or slander if someone posts false information that damages a person or business.

The laws pertaining to defamation, slander, and libel become increasingly important to business owners because of easier digital marketing. Any business owner or manager can post information online, and targeting competitors is a common practice. It’s important that you watch what you say about other companies or risk a lawsuit for defamation, slander, or libel. You can also bring a suit against someone who makes false statements about you or your business. First, it’s important to understand the subtle differences between the terms defamation, libel, and slander.

Defamation Law

Overview of Defamation-type Lawsuits

Defamation is a false statement that someone presents as a fact. Defamation court cases require that the false statement results in an injury to the person being defamed – hurting the person’s business or social reputation or causing pain and suffering. Defamation cases can arise in any media – including blog posts, reviews, speeches, television appearances, etc.

Slander and libel are specific types of defamation. Slander occurs when a person knowingly spreads a falsehood about someone with the intent of damaging that person’s – or company’s – reputation. Libel is when the falsehood is published as fact in a forum where the information is intended to be taken as the literal truth. Sarcastic or humorous pieces are often exempted from libel laws, and exaggerated claims about celebrities and public figures are often taken the same way.

Exceptions for Communicating an Opinion

People can get by making some pretty outrageous comments by couching their opinions. For example, someone might say, “I think she might be a vampire who bathes in the blood of babies.” That’s certainly a mean-spirited, damaging, and controversial comment, but it’s protected speech because the underlying truth of the statement can’t be confirmed empirically. You can’t tell whether the person really believes the statement.

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Further Details About Defamation, Slander, and Libel Cases

If you’ve been defamed in a way that causes harm, such as monetary damages, pain, and suffering, or damage to your reputation, you can file a lawsuit based on the laws of your state. You can also be sued if you make provably false statements to damage another person’s reputation or credibility. These are important distinctions to understand when you start a business. Further information about the types of defamation suits includes these details:

Defamation Lawsuits

Defamation lawsuits can be filed for making false statements in any kind of media – newspapers, magazines, books, internet posts, live interviews, speeches, reviews and even blog post comments. Usually, the legal requirements for filing a defamation lawsuit include these four elements: [1]

  1. A false statement made in a forum where people assume the information is literally true
  2. Publication or communication of the false statement to at least one third person
  3. Some kind of fault, such as malicious intent or negligence
  4. Real-world harm caused by the false statement

These causes must be met for any defamation case, and additional rules must be met in the various states, which control how defamation cases are judged. For example, New York state court requires that cases meet the condition that the defamation is widely accepted as damaging. State cases vary widely, so you should consult a lawyer in your state if you’ve been defamed or charged with defaming a person or company.

Slander Lawsuits

It’s not necessary to publish information to defame a person or company. If you orally tell a falsehood about a company to even a one-third party, it can result in a lawsuit for slander. That includes telling falsehoods in television or radio interviews, speeches, podcasts, videos, and other audio media, but these can fall under libel laws. Defamation cases include all types of media, but slander specifically involves oral pronouncements. [2]

In some states, certain kinds of false statements are automatic grounds for defamation, slander, or libel lawsuit. These include false statements that a person committed a major crime, has an infectious disease or is unqualified in his or her profession. [2] False statements about government or public figures generally require stronger support in providing malicious intent, such as a personal or business relationship that went sour. An idle comment at a drunken party generally doesn’t meet the tests of slander – unless there’s strong evidence of malicious intent.

Slander cases can become complex if the person who defames someone else didn’t consider the comment as disparaging. People have different opinions about what constitutes damage, but personal falsehoods can cause mental anguish. In these cases, proving simple negligence can serve as one of the foundations of a slander lawsuit.

Some people or companies use lawsuits as a strategy to keep people from telling inconvenient truths. That’s why some states have anti-SLAPP laws, which allow defendants to plead their cases, move for early dismissal and shift legal fees to the person bringing the lawsuit. [3] Some critics of President Trump, for example, allege that he used the threat of lawsuits and legal fees to silence criticism of his business practices.

It’s critical to consult an attorney in your state if you’re involved on either side of a civil case. Tort law is specific to each state.

Libel Lawsuits

Libel describes publishing or posting false information about a person or company. This includes publishing articles and blog posts in magazines, newspapers and online forums. In today’s digitally enhanced culture, libel can include signs, posters, flyers, videos, podcasts, and other methods of communication. Unlike other defamation cases, libel actually allows recovery of damages without proving injury – publication of the information is viewed as evidence of damage. The U.S. Supreme Court, however, has ruled that the First Amendment’s protection of free speech limits the awards for damages in some state-court lawsuits. [4]

In the case that resulted in the ruling, the New York Times Company versus Sullivan case, the Court decided that libel cases involving public concerns and officials required additional proof of malice. [5] Adjudicated during the Civil Rights Movement of the 1960s, the landmark case created a national judicial standard for libel cases.

Later judicial rulings have determined that courts can award lesser damages for libel cases that don’t meet the standards of actual malice. Courts can still award presumed and punitive damages if the libel cases don’t involve public issues.

According to one source, libel is writing, broadcasting, or posting false information that harms another person or legal business entity. [6] It’s not necessary to prove malicious intent in libel cases because publishing the statement is viewed as sufficient proof of malicious intent. The case can be limited to a letter written to a single third person, but the statement must be presented as a literal fact and not an opinion. All defamation cases are torts, which are civil cases without criminal penalties.

Proving that the person publishing a false statement had malicious intent allows the wronged party to sue for general damages to his or her reputation. Inadvertent libel cases limit awards to actual damages – such as loss of business – and these cases don’t require proof of malicious intent. Libel cases can also be filed by a survivor of a person who died.

Defense Against All Defamation Lawsuits

Proving that a presumed falsehood is true is the ultimate defense for any defamation lawsuit. It doesn’t matter if the statement damages the person’s reputation or is vicious. If the statement can be proven to be true, it’s an absolute defense against any defamation lawsuit. It doesn’t matter how ugly or mean-spirited the statement is.

Absolute Privilege

Absolute privilege is also a complete defense against any defamation claim. [7] The absolute privilege applies to any statements made in court by the defense and prosecuting attorneys, judges, and witnesses.

Other Common Defenses Against Defamation Lawsuits

Common defenses against defamation cases include qualified privilege in cases that should have absolute privilege but don’t for some reason. Examples might include a reporter reporting the preliminary facts of a story.

Communications that are understood to be opinion-based are a protected forms of speech. Stating that a law enforcement officer took a bribe is defamation, but stating that you think that the officer is crooked is not.

Cartoons, satire, and parodies are generally protected forms of speech. Statements made in the public’s interest are generally protected as well. Innocent dissemination is a less common defense against defamation suits. The strategy is occasionally used by publishers who inadvertently publish defamatory statements because they didn’t get a chance to read the material. The writer might still be on the hook for damages.

False Light Statements

There is actually a fourth cause of litigation that concerns business owners. Some states have “false light” laws that make publishing certain kinds of material in a false light illegal. For example, publishing a photo of a scruffy-looking person under the headline, “Homeless Alcoholics Cause Problems for Upscale Development,” could easily defame a person who was only guilty of shopping while doing chores around the house.

Not all states recognize “false light” as a separate cause of action because defamation laws can be used. In general, false light cases involve situations where misleading information reaches a wide audience. Defamation, however, can be pursued in cases where only a limited number of people received the information. California, New York, and Florida recognize false light cases. [8] Torts in different states vary widely, so it’s important to consult an attorney in your state if your business is defamed.

Protecting Your Business Against Defamation

More and more major companies use denigration techniques to reduce competition. These include identifying the non-price criteria that are important to buyers and pointing out that their competitors don’t offer these features. Free speech protects anyone’s right to criticize, but you should monitor the web for any company using false statements to defame you or your business. [9]

Following Safe, Strategies to Criticize Your Competitors

The best policy is to check your facts before criticizing any competitor, but that doesn’t mean that a competitor won’t file a defamation suit. Some companies file unwinnable lawsuits to discourage criticism, and whether true or not, defending against a defamation case can take lots of time and money.

Defenses against defamation cases include claiming absolute privilege, proving that the claims were true or arguing that the criticism was meant as a parody or a joke. You can also defend your case on the grounds that your communication was based on the public interest or involved a public official’s performance.

Developing a Strong Strategy to Protect Your Business

Knowing how defamation lawsuits work can help a new business owner to avoid the pitfalls of posting information that could be construed as defamation. If you have an active online presence, you need to protect it from false allegations and unnecessary lawsuits. The first rule is to check your facts and couch any criticism of your competitors as opinions. You should also monitor your business and personal name to find any postings that may contain false information.

Business in the digital ecosphere requires aggressive marketing and branding, but don’t get so carried away by competitiveness that you make false statements about your competitors. Digital marketing opens you up to liabilities or damages on both sides of defamation lawsuits. Consulting an attorney in your state is the best policy, and you might consider running your online content by an expert before publishing anything online.

References:

[1] https://www.law.cornell.edu/wex/defamation

[2] https://www.traverselegal.com/blog/defamation-slander-libel-elements/

[3] https://www.rcfp.org/resources/anti-slapp-laws/

[4] https://www.law.cornell.edu/wex/libel

[5] https://www.oyez.org/cases/1963/39

[6] https://dictionary.law.com/Default.aspx?selected=1153

[7] https://www.alllaw.com/articles/nolo/civil-litigation/defenses-defamation-lawsuit.htm

[8] https://injury.findlaw.com/torts-and-personal-injuries/invasion-of-privacy–false-light.html

[9] https://www.twobirds.com/en/news/articles/2019/global/when-does-speaking-badly-about-your-competitors-become-a-competition-law-problem