What are defamation, slander and libel?

The term defamation refers to a false statement made about someone or some organization that is damaging to their reputation. Defamation can come in either written form (libel) or oral (slander) form and consists of making injurious statements about a person that are untrue.

If the injurious statements:

  • involve an imputation of a criminal offense,
  • involve moral turpitude,
  • impute a conta­gious disease,
  • impute unfitness to perform the duties of office, or
  • include words that prejudice a person in his or her profession or trade,

then they may be referred to as being defamatory per se.

If the alleged statement is not defamatory per se, then the plaintiff may have to prove what are called special damages in order to recover against the defendant. Special damages would come in the form of out-of-pocket expenses incurred as a result of those defamatory statements.

If you are a plastic surgeon and a former patient calls you a butcher, that is a statement that is defamatory per se. You could assert a defamation claim against you patient even though you may not have incurred any special damages (any out-of-pocket expense as a result of the making of that statement).

Keep in mind that truth is always a complete defense to a defamation claim.

If, on the other hand, you are unem­ployed and someone calls you a crook, and as a result of making that comment you incur so much emotional distress that you seek psychiatric help, you may have a basis for a defamation claim against that person. Even though the comment made is not defamatory per se, the fact that you have incurred medical expenses as a result of the making of the comment about you satisfies the special damages requirement. It gives you the basis for a defamation claim.

Some statements, although defamatory, are protected by a qualified or absolute privilege. For instance, a statement made by an employer about an employee to a new prospective employer may be governed by a qualified privilege. The idea is to allow employ­ers to freely exchange information about employees. What that means is that the employee in a defamation action against the former employer may have to claim and prove that there actu­ally was some malice in the statements that were made.

An absolute privilege would be one that is an absolute bar to a claim for defamation. For instance, comments made in the course of a judicial proceeding are generally governed by such a privilege. The idea is to allow the parties to freely exchange com­ments during such a proceeding.

Defamation is largely the same whether committed by more traditional means or online. Internet based defa­mation can be dangerous because it is so easy to have widespread public access to the defamatory statement. A seemingly innocent rant can spread quickly through Internet web sites, emails, and online postings. Importantly, under the Communications Decency Act (codified at 47 U.S.C. § 230), website owners generally cannot be held liable for defamatory or otherwise harmful content posted on their site by third parties.

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