The intentional tort of defamation occurs when one person makes a false statement about another person and the statement harms that person’s reputation in some way. When the false statement is spoken, it’s known as slander; when the statement is written, it’s known as libel. The term “defamation” covers both slander and libel.
Because defamation cases are almost literally court cases over “he said, she said,” defamation is often more complicated to prove than torts like assault. In most courts, a plaintiff trying to prove defamation must prove the following:
“Publishing,” in defamation, means merely that the defendant made the statement available to someone who was not the plaintiff. He may have said it out loud or written it in a text message or a note. Putting the statement in a public forum, like on a billboard or in a newspaper, is not necessary. If even one person who isn’t the plaintiff or defendant hears or reads the statement, the statement has been “published” for defamation purposes.
A plaintiff who is a “public figure” will have a harder time proving defamation in court than someone who has never been in the public eye. In most states, defamation law requires public figures to prove actual malice in addition to the elements listed above. Contrary to its name, “actual malice” doesn’t mean the defendant had to make the statement out of hatred for the plaintiff. Instead, “actual malice” occurs when a defendant publishes a statement about a public figure while knowing that the statement is false or with “reckless disregard” about whether it’s false or true.
A defamatory statement may be categorized as “libel” or “slander,” depending on whether it is written or spoken. It may also be categorized as “defamation per se” or “defamation per quod.” Both written and spoken statements may fall into either category.
“Defamation per se” refers to statements that, because of their content, the court assumes will injure the plaintiff’s reputation. In most U.S. states, statements that are defamatory per se include statements that say or imply:
Originally, “sexual misconduct” referred to statements that a woman, but not a man, was sexually promiscuous. Today, however, most U.S. states recognize false statements that claim any person has committed sexual misconduct are defamatory per se.
The definition of “loathsome disease” also varies depending on which state or federal court is hearing the case. Generally speaking, the phrase refers to diseases, usually contagious ones, that the public fears. For example, it is defamation per se in most states to claim that someone has AIDS, but it is not defamation per se to claim that same person has a cold or a toothache.
In a defamation per se case, the plaintiff does not have to prove that the false statement caused actual monetary damages in order to win in court. It is enough to prove that the defendant published the false statement. The court assumes that the statement injured the plaintiff’s reputation, and that the plaintiff is entitled to damages, because the nature of what is in the statement would injure anybody in the plaintiff’s position.
Any defamatory statement that does not fall into one of the categories above is “defamation per quod.” In a defamation per quod case, the plaintiff must prove that her reputation was injured and that actual damages resulted from that injury.
Usually, defamation per quod statements are context-based. An outsider may not understand why the statement injures the plaintiff’s reputation, but the people to whom the defendant published the statement understand it. For example, in the 1994 Indiana case Schrader v. Eli Lilly & Co., Schrader sued her employer, Eli Lilly, for posting meeting notes on a bulletin board at her workplace. The meeting notes contained a list of people who were going to be fired, including Schrader.
To an outsider, the list looked harmless. To Schrader’s coworkers, however, the list represented people that the company had caught in some kind of wrongdoing. Since Schrader had done nothing wrong, including her name in a list of people whom the company claimed had misbehaved amounted to defamation per quod, since Schrader’s coworkers would now believe that she could not be trusted.
Defamation cases are also complex because most courts recognize a long list of affirmative defenses to defamation. These include: