Elements of Defamation

August 4, 2023    •    6 min read

While litigation can be an effective way of obtaining relief, there are a number of factors to consider before filing a lawsuit – both legal and practical. Typically, a good place to start is determining whether the facts and circumstances at issue meet the general elements of a defamation claim. Below, Buckingham addresses the general elements common to defamation claims and some of the issues that frequently arise in terms of proving the same.

What Is Defamation?

Generally speaking, defamation is the act of communicating false and damaging statements about a person or organization to a third party. According to Cornell Law School, there are countless situations in which defamation can arise:

  • Through the spoken word (slander)
  • When published in a tangible form (libel)

Today, many defamation claims arise through publication of false statements on the internet (internet defamation or cyber-libel). This enhances the importance of having an online reputation management strategy. Needless to say, it’s easier than ever to disseminate false and harmful information to a large audience, and, as new forms of communication develop, so do the ways in which one can fall victim to defamation.

The impact of defamation can be devastating, regardless of whether you are a private individual, a small business owner, professional organization, celebrity, or multi-national corporation. A reputation that took years to build can be destroyed by a single bad actor spreading lies about you or your business.

Defamation can harm personal and professional relationships, result in loss of customers or clients, and cause serious emotional damage to victims. These harms – both economic and non-economic – are compensable under the law. Through litigation, a defamation victim can demonstrate that the statements made about them were false, stop the perpetrator from repeating their false statements, and recover monetary compensation for the damage caused.

A businessman sits outside and reads a claim of online defamation on a tablet.

Common Elements of Defamation

In the United States, defamation is a state law claim.  While each state has its own body of defamation law – with the claim itself often being defined by statute – there are several general elements common to defamation claims in any jurisdiction.  

  1. The Person (or Entity) Being Defamed is Identified in the Statement

To satisfy the first element of a defamation claim, you must show that the defamatory content identifies the subject of that content. In legal terms, this is generally referred to as the “of and concerning” element or test.

Stated plainly, defamatory words will not give rise to a claim unless they refer to a person (or organization) by name or in such a manner that a reasonable person reading the allegedly defamatory statement in context would understand that the statement referred to the plaintiff.

Often, this element is not difficult to satisfy. People making defamatory statements – especially those who are intending the statements to cause harm – usually identify the subject either by name or through contextual cues that removes any ambiguity as to who the statement is about. For example, referring to the “CEO” of a specific company will identify that person even if they’re not named. However, satisfying this element can become complicated if there are ambiguities about who is being referenced. In that situation, it will be necessary to provide evidence that third parties actually understood the false statement to be about the victim.

  1. The Published Information is Demonstrably False

The second element of a defamation claim – the published information was demonstrably false – can be a point of confusion or frustration for those unfamiliar with defamation law, as there are many types of statements that can be negative and damaging, but do not satisfy this element.

For example, leaving a one-star review for a doctor that states, “He was the worst doctor in the world and had a terrible bedside manner” could undoubtedly hurt that doctor’s reputation and discourage patients from going to see him. But the reviewer’s statements are pure opinion – there is no feasible way to determine who is the “worst doctor in the world” or if his bedside manner was truly “terrible.”

Conversely, if the reviewer claimed the doctor was “the worst in the world” because he, for example, “negligently performed my surgery” or “sexually harassed me at my appointment,” the latter statements would be actionable because they are capable of being proven true or false.  

  1. The False Information Must Be Published

The element of “publication” is usually extremely straightforward. The only requirement is that the false statement at issue has been conveyed to a third party – i.e.,  the statement has been seen or heard by someone other than the person who made it and the person who it was about.

While satisfying this element may be simple as a matter of law, the “publication” element can still impact a claim in a variety of ways, including issues related to the statute of limitations and damages. Identifying the original publication of a defamatory statement (if made more than once), as well as any subsequent republications to undertake a full analysis of a claim.

  1. The Defendant is at Fault

In order to prevail on a defamation claim, you must show that the defendant was at fault in publishing the false and harmful statements about you. In other words, they failed to meet their obligations in determining whether the statement was true or not.

There are two different standards of fault that can apply: negligence and actual malice.

Generally, a defamatory statement is published negligently if a reasonable person should have known that it was false. Conversely, a defamatory statement is published with actual malice if, and only if, the publisher (1) knew that it was false when they published it or (2) exhibited a reckless disregard as to the truth or falsity of the statement when they published it.

Generally, which standard applies depends upon who is being defamed: whether they are a private figure or a public figure. When someone is a “public figure” or “public official,” the actual malice standard will apply. Celebrities, such as well-known movie stars or musical artists will be classified as “public figures” because of their widespread notoriety due to their fame. Additionally, government officials – or “public officials” – are also considered public figures by virtue of their status as an individual holding public office.  

As indicated above, proving “actual malice” requires more than merely showing that someone should have known that the statement was false. The speaker must have either known that the statement was false when published or that they published the statement with reckless disregard as to the truth or falsity of the same. Whether a defamation plaintiff can meet the actual malice standard is an extremely fact specific inquiry and typically requires information about the defendant’s subjective statement of mind when the defamatory statement was made. Often, a defamation plaintiff will not have access to all the information or evidence necessary to prove actual malice before filing a lawsuit. However, this information can be secured through the discovery process, such as through taking the deposition of the defendant or securing private communications made by the defendant, that can reveal that the defendant knew, at the time their statement was made, that it was actually false or that they entertained serious doubts about the truth of their statement.

  1. The Remarks Harmed the Person’s Reputation

To successfully prove a defamation claim, it must be established that the false statements harmed the subject’s reputation. Satisfying this element will depend upon whether the statements are considered defamatory per se or defamatory per quod.

Generally, statements are “defamatory per se” – or, defamatory on their face –  if they naturally expose the subject of the statement to hatred, ridicule, contempt or disgrace. When a statement is “defamatory per se,” reputational harm will be inferred. While each state has their own law in regards to what is considered “defamation per se,” traditionally, there have been four categories of statements that meet this definition:

  • Statements that someone is guilty of a serious crime;
  • Statements that someone was “unchaste” or engaged in sexual misconduct;
  • Statements that someone has a “loathsome” or contagious disease;
  • Statements that someone engaged in behavior that was incompatible with the proper conduct of his business, trade, or profession

Regardless of whether a statement will be considered defamatory per se or defamatory per quod, defamation plaintiffs should preserve all information and evidence that tends to reflect that they have been hurt by the defamatory statement to bolster their claims.

A group of defamation attorneys sit at a wooden desk and discuss the elements of defamation.

Consult with an Experienced Defamation Attorney

As demonstrated above, the success of a defamation claim depends on a variety of factors. If you are a victim of defamation, you should consult with an experienced defamation attorney to determine the strength of your potential claim and what challenges you might encounter in pursuing the same through litigation.

The defamation practice group at Buckingham has significant experience handling defamation claims in numerous state and federal courts. Our attorneys have vast knowledge about both the substantive and procedural law relative to defamation lawsuits. This knowledge, combined with our attorneys’ passionate advocacy and transparency about the litigation process has earned the trust of our clients.

If you are suffering harm from the publication of defamatory statements, we encourage you to contact Andrew Stebbins at [email protected] to schedule a complimentary consultation tailored to the specific facts and circumstances of the issues you are facing. 

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