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Tort Law: The Rules of Defamation

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Tort Law: The Rules of Defamation

The law protects people from many types of harms, including harm to one’s good name and character. The United States legal system affords people the right to sue when false and defamatory statements have harmed their reputations.

Elements of Defamation

Defamation is a “communication that tends to harm the reputation of another to lower his estimation in the community or deter third parties from associating with him.” [1] A statement is defamatory if has a negative impact on someone’s reputation among a substantial number of people in the community, even if the number of impacted people is not a majority of the community.[2] 

Since these rules offer only general guidance, the determination of whether a negative statement rises to the level of defamation must be determined on a case by case basis. Every defamation claim must meet the following four elements:

(a)  a false statement concerning another;

(b) the statement must be defamatory;

(c) a publication to a third party; and

(d) harm to the plaintiff’s reputation.[3]

For statement to be considered defamation, it must be about the plaintiff. Even if the statement does not mention him or her by name, it can be actionable on grounds of defamation if a reasonable person would understand the communication as referring to the plaintiff.

The statement must be communicated to a third-party. If the defendant communicated a harmful oral statement about the plaintiff to his face with no one else present, or wrote a harmful statement which was never distributed, there is no defamation.

In some cases, the plaintiff must show some degree of culpability on the part of the defendant. For example, the Supreme Court has ruled that if the publication involved a matter of public concern (such as, for example, large scale fraud in government programs), it must be shown that the defendant knew or should have known that the statement in question was false for liability to attach. A completely innocent publication, in which the publisher had reasonable grounds for believing the report to be true, is not considered defamation in such cases.[4] Some states apply the requirement of fault in all cases,[5] while others allow liability for defamation even without fault where the plaintiff is not a public figure and the statement is not a matter of public concern.[6]

The statement must allege something about the plaintiff which is considered harmful and which would very likely cause harm to someone’s reputation. A statement that some people might consider a bad thing is not necessarily enough. For example, falsely announcing to a crowded room that a party guest is a Democrat or a Republican may be insulting or offensive in some contexts. However, it lacks the personal disgrace element the courts usually insist on for a finding of defamation.[7] In one case, a plaintiff sued on grounds that the defendant published a book which falsely claimed that he knew “a junkie . . . who was doing time in prison.” The court held that while this association might reflect poorly on the plaintiff, it is not considered defamatory since it does not actually accuse him of doing anything wrong.[8]

Libel and Slander

Libel and slander differ in terms of when a plaintiff can recover. Libel is defamation that is written or communicated to a large audience. In such cases, the plaintiff can recover even without having to specifically demonstrate that he has suffered actual economic harm. If the defamatory statement is the kind of communication which generally results in harm to reputation, the law presumes such harm, and the plaintiff may recover.

Slander is defamation that is not libel; i.e., not written or mass communicated. In such cases, the plaintiff must prove that actual harm has resulted from the impact of the slander on his or her reputation.[9] In most cases, actual harm is shown through economic loss attributable to the impact of the slanderous statements on business reputation. Courts have also allowed harm to be demonstrated by negative personal consequences of the statement.[10] Examples of personal harm can be the loss of friends or a marriage engagement broken off due to the statement.

            There are a few exceptions to this requirement of “special damages” when it comes to slander. Certain types of defamatory statements are considered so egregious in their potential to destroy a reputation that the plaintiff does not need to present specific evidence of harm. These are called cases of slander per se. They include false statements accusing someone of committing a serious crime, of having a serious communicable disease, of unfitness to carry out his job and serious sexual misconduct.[11] Each of these categories has evolved and must be viewed on a case-by-case basis.

Defamation of Public Figures

It is common for defamation cases to involve public figures such as politicians, celebrities and athletes. Since these people are in the public spotlight, they are likely targets of defamatory statements. At the same time, the law recognizes that it is critically important for the media and the public at large to discuss issues of public concern without fear of litigation. This often involves criticizing the people who have placed themselves in the public spotlight, sometimes in harsh and personal terms.

To balance these competing interests, the United States Supreme Court ruled in the landmark New York Times v. Sullivan decision, that there is a higher standard for defamation when the plaintiff is a public official. In Sullivan, a police official sued The New York Times for publishing an advertisement on abuses of civil rights protesters by an Alabama police department. Sullivan alleged that the ad inaccurately reported important details of the event in question.  The Court ruled that as a public figure, Sullivan had to show more than mere carelessness or negligence on the part of the newspapers. The Court ruled that public officials must show actual malice on the part of the publisher of the defamatory remarks. “Actual malice” means that a plaintiff must demonstrate that the publisher knew that the statement was false or acted with reckless disregard to the truth of the statement.[12] This elevated standard allows for more freedom to publish without fear of litigation, which enables uninhibited, open debate on public issues, while still protecting public figures in the most severe cases of defamation.

This requirement was later extended to all public figures, not just public officials. So, the requirement to prove actual malice now also applies when professional athletes, actors and even high-profile news anchors wish to sue media outlets for defamation.

Defenses to Defamation

A fundamental rule of defamation law is that truth is an absolute defense. If the alleged claim is true, then the publisher cannot be sued for libel or slander.

There are also other important defenses to claims of defamation. The law recognizes certain forums as especially in need of protection from litigation to foster free and open discussion among the participants. For example, legislators and politicians debating public policy in legislative proceedings have an absolute privilege which protects them from defamation claims.[13] Likewise, to protect the integrity and independence of the court system, statements made during judicial proceedings are considered privileged and cannot be targeted for defamation claims.[14]

Finally, communications between married couples are not subject to defamation claims.[15] This is in line with the well-established principle of privileging conversations between spouses.

Today, protecting one’s reputation is key to ensuring success in many facets of life. Even though the threshold for making a successful claim of defamation is high, this area of tort law entitles a plaintiff to protection and damages in cases of reputational harm.


[1] Restatement (2nd) of Torts, §559.

[2] Restatement (2nd) of Torts, §559, comment e.

[3] Restatement (2nd) of Torts, §558.

[4] Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).

[5] See, e.g.,Levinsky's, Inc. v. Wal-Mart Stores, Inc., 999 F. Supp. 137 (D. Me. 1998)

[7] Prosser, Wade, and Schwartz, Torts: Cases and Materials 850, n.4 (9th ed. 1994).

[8] Romaine v. Kallinger, 537 A.2d 284 (1988).

[9] Matherson v Marchello, 100 AD2d 233, 236; Restatement (2nd) of Torts, §575).

[10] Restatement (2nd) of Torts, §575, comment b. 

[11] Restatement (2nd) of Torts, §571-74.

[12] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

[13] Tenney v. Brandhove, 341 U.S. 367 (1951)

[14] Restatement (2nd) of Torts, §585.

[15] Restatement (2nd) of Torts, §592.