FAQ: Questions and Answers

[back to notice text] Question: What is the difference between libel and slander? Answer: Libel is a defamatory statement expressed in a fixed medium such as a writing, picture, sign or electronic broadcast. Slander is a defamatory statement expressed in a transitory form such as speech. [back to notice text] Question: What are the elements of a defamation claim? Answer: The party making a defamation claim (plaintiff) must ordinarily prove four elements: a publication to one other than the person defamed; a false statement of fact; that is understood as a. being of and concerning the plaintiff; and b. tending to harm the reputation of plaintiff. If the plaintiff is a public figure, he or she must also prove actual malice. [back to notice text] Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content. [back to notice text] Question: What is the "publication" of a defamatory statement? Answer: Publication is the dissemination of the defamatory statement to any person other than the person about whom the statement is written or spoken. [back to notice text] Question: What is defamation? Answer: An attack by speech on the good reputation of a person or business entity. Speech that involves a public figure--such as a corporation--is only defamatory if it is false and said with actual malice. It also must be factual rather than an expression of an opinion. In the United States, because of our strong free speech protections, it is almost impossible to prove defamation of a public figure. [back to notice text] Question: What is the legal definition of defamation? Answer: The elements that must be proved to establish defamation are: (1) A publication to one other than the person defamed; (2) of a false statement of fact; (3) which is understood as being of and concerning the plaintiff; and (4) which is understood in such a way as to tend to harm the reputation of plaintiff. [back to notice text] Question: Does it make any difference if I am commenting on a product or company rather than a person? Answer: Product disparagement law prohibits certain false claims about another's goods or services. While a defamatory statement harms the reputation and character of a person or corporation, a product disparaging statement harms the marketability of the goods being disparaged. Product disparagement is typically harder to prove. [back to notice text] Question: How does the First Amendment to the Constitution affect defamation? Answer: The free speech guarantees under the Constitution protect certain speech and commentary. The degree of protection generally depends on whether the person commented about is a private or public figure and whether the statement is regarding a private or public matter. According to the New York Times rule (from the case New York Times v. Sullivan), when the plaintiff is a public figure and the matter is one of public concern, the plaintiff must prove "malice" or "reckless disregard" on the part of the defendant. If both parties are private individuals, there is less protection for the speech because the plaintiff only needs to prove negligence. [back to notice text] Question: What is slander? Answer: Slander is a defamatory statement expressed in a transitory medium, such as verbal speech. It is considered a civil injury, as opposed to a criminal offence. Actual damages must be proven for someone to be held liable for slander. The tort of slander is often compared with that of libel, which is also characterized as a defamatory statement, but one made in a fixed form, such as writing. [back to notice text] Question: May someone other than the person who originally made the defamatory statement be legally liable in defamation? Answer: One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law. [back to notice text] Question: What is Malice or "Actual Malice"? Answer: Malice is often defined as, "the intent, without justification or excuse, to commit a wrongful act." It is the conscious, intentional wrongdoing with the intent of doing harm to do the victim. In many civil cases, a finding that a defendant acted with malice will often open the door to liability or increased damages, such as punitive damages. "Actual malice" is a legal term of art that is mainly relevant to defamaton claims. "Actual Malice" is found to be present when a false statement is published with either a) actual knowledge of its falsity or b) reckless disregard for its falsity-- a "should have known" standard. One cannot be held liable for publishing untrue statements about public figures (or companies) without being found to have acted with "actual malice".

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