What is the difference between slander and libel in defamation cases?
Defamation is a legal theory that allows you to sue someone civilly when they make false statements about you that damage your reputation.
In a nutshell, libel is a form of written defamation, whereas slander is a form of verbal defamation. However, there is a great deal to learn regarding the many sorts of defamation, such as the difference between public and private figures, the “per se” varieties of slander and libel, and much more.
How Does Defamation Occur?
Let’s get down to brass tacks first. While the First Amendment does protect some forms of expression, it does not apply to all.
Striking a balance between opposing interests is the art of defamation law. While allowing for free speech, political disagreement, and the inevitable human error, the rules shield individuals from the actual harm that results from falsehoods spread about them in public.
While the specific statutes governing the civil wrong of defamation vary from one state to the next, the underlying concepts are consistent across. In most defamation cases, the burden of proof is on the plaintiff to prove that the defendant:
- Made a defamatory claim based on an “unprivileged” assertion of truth.
- The speaker did not address the plaintiff directly, but rather a third party
- The plaintiff suffered compensable harm, such as damage to their reputation, as a result of the statement
A further element that plaintiffs need to prove is that defendant was “at fault” at the time the remark was said. Legally speaking, the notion of fault varies depending on the person who was slandered. In order to prove that the defendant behaved “negligently,” or without reasonable research into the veracity of the statement, private individuals must prove that the defendant made the remark without checking it for accuracy.
A public figure has the burden of proving that the defendant behaved with “actual malice.” This term refers to a situation in which the defendant either had knowledge that the statement was untrue or acted recklessly without caring about the truth or falsity of the statement.
Public vs. Private Persons in Defamation Cases
Filing defamation lawsuits is a common occurrence for public personalities. Famously, Johnny Depp prevailed in his 2022 defamation case against Amber Heard, his ex-wife. Blac Chyna’s defamation lawsuit against the Kardashian-Jenners was also unsuccessful around this time. However, compared to private individuals, public figures have a more difficult time winning defamation claims.
People living private lives, such as your next-door neighbor, bookseller, or coffee shop manager, who allege defamation need simply prove that the defendant recklessly spoke a defamatory comment. For the defamatory comment to be considered unreasonable, it must be proven that a “reasonable person” would not have said it.
Proving that a defendant knowingly created the defamatory remark or acted recklessly disregarding the truth is much tougher than proving mere carelessness, and it is especially burdensome for public persons.
How come there is this inequality? The conflict between free expression and defamation laws gives rise to varied standards. Everyone, including journalists, should be allowed to speak their minds about public figures and other topics of public interest without worrying about legal repercussions. People are likely to pay closer attention to politicians and celebrities who actively seek publicity.
People in the public eye often include:
- Celebrities
- Politicians
- Business leaders
- Professional athletes
- Public officials
There is a concept of “limited purpose public figures” that applies to those who become embroiled in public controversy. Think of a scientist who speaks out about COVID-19 as a limited-purpose public character; the same goes for a pilot who is a victim of a plane crash; they may become a limited-purpose public figure in the days following the incident.
Two Kinds of Defamation: Slander and Libel
Types of defamation include libel and slander. Defamation in writing is known as libel. Verbal defamation is known as slander.
Libel
A person commits libel when they publish a false allegation about another person in a written form that brings public contempt, humiliation, disgrace, ridicule, or hostility against that person.
Some common types of defamation include claims made in:
- Books
- Magazines
- Newspapers
- Newsletters
- Social media
Definition of “Libel Per Se”
Written remarks are considered to be libel per se when they are so commonly acknowledged to be hurtful that it is expected that they will be detrimental to the reputation of the plaintiff. The following are some examples of libel per se remarks that claim someone:
- Committed a crime
- Has a transmissible illness
- Lacks professional honesty or ability
- Committed adultery
Libel Examples
Whether in print or online, someone can libellously assert anything about a person or organization. Here are some remarks that might be considered libelous:
- Social media post propagating an unfounded accusation regarding a person’s sexually transmitted illness
- A reviewer fraudulently states that they received a foodborne illness at a restaurant in their Yelp review
- A critique of work performance that makes unfounded allegations of theft
- A letter published in a journal that makes unfounded accusations against a licensed attorney
Context is key for determining libel. A flattering magazine profile that calls an athlete a “pimp” is likely not libelous. Rather than accusing the athlete of a crime, the writer is probably just praising him or her in the context of the feature.
Slander
Falsely stating anything negative about another person in order to bring disrepute upon them is known as slander.
Public forums, such as town hall meetings or professional conferences, are common venues for slanderous remarks.
The boundaries between written and oral communication are becoming more porous as a result of technological advancements. Is a podcast more like a written screenplay spoken aloud (libel) or an oral remark (slander)? Would you say that a slanderous text message is more akin to a blog post or a conversation?
Digital communications and broadcast speech have been characterized as either libel or slander, but the courts cannot agree. Courts should do away with the classifications entirely, according to certain legislators and legal professors. These days, the majority of courts look at how widely disseminated and how long-lasting the defamatory comment is. Remarks addressed to a smaller audience that are more transient are likely to be characterized as slander, whereas remarks that are permanent and far-reaching are likely to be characterized as libel in court.
Definition of Slander Per Se
Similar to libel, there are two distinct types of slander: general slander and slander per se.
The legal concept of “slander per se” refers to defamatory statements made about another person or organization that are sufficiently damaging to their reputation that the plaintiff is likely to suffer reputational injury as a result. False charges of inappropriate sexual behavior, illegal behavior, or unethical commercial practices are examples of slander per se.
For a claim of non-per se slander to be successful, the plaintiff must prove that the defendant misrepresented facts about them to another party and that the plaintiff incurred “special damages” due to the slander. To prove special damages, the plaintiff must show that the defendant’s statements caused the plaintiff economic injury, such as losing clients or losing one’s job.
Understanding “Slander of Title”
When you think about a slander of title suit, you can see it as a cross between personal injury and property law. It happens when someone publicly says or does something that “clouds” or raises concerns about another individual’s property ownership.
The defendant in a slander of title lawsuit must have behaved with “malice” or reckless disdain for the statement’s veracity or the propriety of the public filing in order for the case to be successful in most jurisdictions.
If a plaintiff’s claim for defamation of title is successful, they can get their money back for all sorts of damages, such as the expense of resolving title disputes and the economic effect of missing out on real estate deals.
Comparing Libel and Slander: How Are They Different?
Defamation in writing is known as libel, as we’ve discussed. Spoken defamation is slander.
Since written remarks have the potential to be more widely disseminated and endure longer than spoken ones, courts often see libel as more damaging than slander. Technology, however, is making it harder to tell libel from slander.
Aside from the medium of communication, the additional burden on plaintiffs asserting slander to prove particular damages is the most notable distinction between libel and slander. Keep in mind that the plaintiff is not required to establish particular damages in a slander per se claim.
What Happens After Defamation?
Every single one of the 50 states recognizes defamation as a civil wrong (or “tort”). Although criminal defamation laws are still in place in certain states, prosecutions for such crimes are extremely rare.
Defamation laws and penalties are not uniform across the country. If a defamation lawsuit is successful, the plaintiff may be able to collect damages in the form of:
- Lost earnings
- Lost business or financial opportunities
- Future lost earning capacity
- Medical expenses, both current and in the future (such as therapy costs), and
- Pain and suffering
Victims of defamation can seek redress for a wide range of physical and mental injuries, including but not limited to psychological pain, emotional distress, social stigma, anxiety, loss of appetite, disturbed sleep, embarrassment, and humiliation.
Protections against Defamation Lawsuits
Defamation law seeks to find a middle ground between people’s rights to preserve their reputations and the free flow of knowledge, ideas, and opinions, which makes defamation claims complex and difficult to establish.
Defamation cases often involve common defenses such as:
- the statement was true
- the statement was privileged
- the statement was an opinion
- the statement was withdrawn
What can I do if someone spreads false information about me?
A court’s ability to award damages is fact-specific. In many cases, the plaintiff’s reputation takes a minor hit despite the severe insult they experience. This happens all the time when people in the same household or neighborhood have a disagreement. However, in extreme cases, such as when a plaintiff’s former employer intentionally misleads a potential employer in order to block the plaintiff from getting a job, the damages might be substantial. When the wrongdoing is very severe, the court may decide to issue punitive damages.
Defining “slander per se” and “libel on its face”
Defamation can occur even in the absence of proof of real damages when some remarks are detrimental in and of themselves.
For a written statement to be considered defamatory on its face, it must have the natural and probable consequence of defaming the plaintiff without taking any surrounding circumstances into account.
Falsely accusing the plaintiff of a crime, an infectious, transmissible, or horrible disease (such as HIV or syphilis), or infertility or lack of purity is enough to constitute slander per se in an oral statement. Falsely impugning the plaintiff’s disqualification from her office, profession, trade, or business would also be detrimental, as would a natural tendency for the statement to affect profits.
What is the statute that addresses libel and slander?
Sections 44 -48.9 of the California Civil Code outline the crimes of slander and libel. The California Legislative Information website or your neighborhood library should be able to provide you with free copies of the state’s statutes. For further information on slander and libel case law, you may also visit your local law library.
Defamation defenses that are popular
A defendant in a defamation action may raise any of the following defenses:
- Truth: When it comes to defamation cases, truth is the best defense. The plaintiff does not have the right to a judgment if the defendant can prove that the comments that are purportedly defamatory are factual. The likelihood that the defendant may use a truth defense should be considered by any plaintiff thinking about bringing a defamation action to court. Keep in mind that in order to prevail with a truth defense, the defendant must prove to the court that the statement in question is true.
- Opinion: Defamation cases only address factual claims, not views. The difference between a fact and an opinion is that the former can be demonstrated or disproven, while the latter cannot. The context of a remark is what the court considers when deciding whether it is an opinion or a statement of fact. “Bob is a jerk” is probably not defamatory since it’s just a personal opinion, but falsely saying, “Bob hit Joe in the nose,” could be since it falsely charges Bob of a crime.
- Fair Criticism of Public Figure: The right to free speech includes the protection of statements that provide honest assessment or commentary on issues of public importance, as well as statements made by prominent figures including the plaintiff. If a defendant made false remarks within the scope of his or her public persona, the plaintiff who is a public figure must show that the defendant acted with malicious intent rather than carelessness.
- Privilege: Some statements are deemed privileged, such as testimony provided under oath in a legal hearing. Unprivileged comments are the exclusive focus of defamation proceedings.
- Libel-Proof Plaintiff: Someone whose image is so ruined that it has no value, like a serial killer on death row, cannot show damage.
- Death: It may be disrespectful to talk poorly of the departed, but they can’t sue for it.
Common misunderstandings
False information abounds on defamation due to the widespread misunderstanding of the term. This section clarifies a few of these misunderstandings:
“I didn’t tell anyone else!”
This doesn’t help your case. All that is necessary for a libel or slander tort is for the defendant to have spoken to someone other than the plaintiff.
“All I did was repeat what another person told me!”
Likewise, this does not constitute a defense. The law also holds someone accountable for defamation if they repeat a defamatory comment.
“But I didn’t use or changed the person’s name when I talked about them!”
Defamation cases hinge on the question of whether the plaintiff’s identity was fairly apparent. Using the phrase “An unknown government executive dwelling at 1600 Pennsylvania Avenue,” for instance, might properly lead an audience to believe that the President was being mentioned.
“I demand his arrest for defamation since he lied about me in court.”
Lots of people get slander and perjury mixed up. If you lie in court or make any other false statement while under oath, you are committing perjury. Prosecutors from the District Attorney’s office have the authority to bring charges of perjury. The unfortunate reality is that slander and libel may only be applied to non-privileged utterances; court evidence falls within the privileged category.
“But I said ‘I think’ before what I said, so it was just my opinion!”
When deciding a case, courts consider all relevant factors. Although everyone has the right to their own view, just because you preface a remark with “I think” doesn’t mean it’s an opinion.
Legal Counsel for Defamation
You should take action to protect your honor and reputation if someone is defaming you. To discuss your legal alternatives, see an attorney. Talking to an attorney can help you determine if you have grounds for a libel or slander claim as well as when and where to take legal action.
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