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Libel, Slander and Defamation

What Are Defamation Laws?

The term “defamation” refers to a person making false and malicious statements about someone else, either through written or spoken word. As an area of law, defamation works to remedy situations in which someone's words cause harm to someone else's livelihood or reputation. A person who has experienced defamation, or has been defamed, may sue the person responsible for the defamation in a civil court.

Defamation of character is used as an umbrella term for any statement that damages another person's reputation. In the United States, laws are in place which intend to prevent people from ruining other people's lives when it comes to career, reputation, and personal life. However, citizens have the right to speak freely about one another without fearing that they are going to get pulled into court for litigation. Defamation laws attempt to balance this freedom of speech.

What Is the Difference Between Libel and Slander?

Libel and slander are two kinds of defamation. Defamation happens when an individual makes false statements about another individual or business that causes an injury. Libel includes statements made in a printed publication, whereas slander encompasses spoken words.

Although the law seeks to provide remedies to those harmed by others, the Constitution also delivers specific protection. Thus, the First Amendment guarantees of free speech can complicate defamation cases.

Written defamation, such as defaming someone in a book or newspaper, is referred to as libel. This definition of libel can also extend to cover businesses, not just individuals. Additionally, libel can refer to visual depictions, and published statements that are made on radio, audio, and video.

Libel is considered to be damaging to a person's reputation due to the fact that the defaming information can be read by large amounts of people. In order to recover for libel, the false statement must actually harm the reputation of the other person, as opposed to being merely insulting or offensive.

Spoken defamatory words are called slander. Slander involves the oral “publication” of defamatory remarks that are heard by a third party. The distinction between libel and slander lies in the method of publication. Recently, it has been determined that there are not many differences between the two terms. In fact, the Illinois Supreme Court explained in the Bryson v. News America Publication, Inc. case that “libel and slander are now treated alike, and the same rules apply to a defamatory statement regardless of whether the statement is written or oral.”

Why Does the Distinction Matter?

Because defamation in the form of libel is generally more injurious than that of slander, courts typically look at libelous cases as more serious. In some cases, the distinction between libel and slander is less clear. If the defamation is more permanent, such as an article or a recording, it is more likely that a court will consider it libel.

This distinction matters because in many cases, it comes down to damages. If a plaintiff is able to prove that a statement was libelous “on its face,” damages are presumed. Proving actual specifics and amount of loss (special damages) is not necessary. However, if the statement was slanderous, it is very likely that the plaintiff will have to prove special damages.

Generally speaking, libel and slander are civil claims. Some states do recognize an action for criminal defamation. Most state criminal libel statutes recognize statements that cause breach of the peace, and may criminalize published statements that are dishonest or expose someone to hatred, mockery, and contempt.

Libel claims may be brought by living persons, as well as legal entities, such as corporations and unions. This definition extends to any entity considered to be a “person” under the law. Governmental entities cannot bring a lawsuit for libel, but government officials can if statements were directed towards the official individually.

Proving Defamation Through Libel or Slander

States laws regarding proving defamation through the legal theories of libel and/or slander vary. However, there are some general rules that a person must prove in order to show that a statement made was in fact defamatory. Again, the false statement must actually harm the reputation of the other person, as opposed to being merely insulting or offensive. A statement may be considered defamatory if the statement was:

  • Published: Under legal definitions, “statement” refers to something that can be spoken, written, pictured, or gestured. A published statement means that a third party saw or heard the statement, but it does not necessarily mean that it was printed in a book or magazine. This definition includes radio, speeches, television, social media, or even loud conversation;
  • False: Defamatory statements must be objectively false. This is because true statements are not considered to be damaging to others.;
  • Injurious: The plaintiff must prove that the statement harmed them in some way. An example of this would be if they lost work because of the statement, or they were shunned and/or harassed by neighbors because of defamatory remarks; and
  • Unprivileged: The defamatory statement must also be unprivileged. What this means is that in some circumstances, such as witnesses testifying in court or lawmakers making statements in the legislative chamber, they are not to be held liable for any statements that would otherwise be defamatory.
  • To prove the above criteria, it is essential that you document all of the details if you think a person has committed libel against you.

What Is Employment-Related Defamation of Character?

Employment defamation, or workplace defamation, is a legal issue which involves false statements about an employee that harm that employee's ability to maintain their current job, or seek a new position. This applies to all employees, whether they are current or former employees. This issue of workplace defamation most commonly arises when a prospective employer attempts to verify a candidate's background by seeking a reference from the candidate's current or former manager, or employer.

If an employer or former employer lies about the candidate in their job reference, and that statement hurts the candidate's chances of receiving a job or damages their reputation, the injured party may have a legal claim for defamation.

Another example of how employment defamation may occur is if an employer makes defamatory statements in the workplace which results in the employee being terminated by the company. This applies if another person, such as a coworker, makes the defamatory statements. If the statements have created such a hostile work environment that the employee has no other choice but to resign, the employee may consult an attorney to see if they are able to file a wrongful termination lawsuit.

How Is Employment-Related Defamation Proven?

To prove a defamation case in court, the plaintiff must prove five specific elements regarding the circumstances of the case. These elements are:

The employer made a defamatory statement: A statement is generally considered to be defamatory if it harms the former employee's reputation by lowering them in the estimation of the community. A statement may also be considered defamatory if the statement deters third parties from associating or dealing with the employee;

The employer published the defamatory statement to a third party: Publication may be verbal or non-verbal;

The employer's statement was false: Generally speaking, the duty to prove that a defamatory statement is false falls on the former employee. They must show specific facts demonstrating that their former employer's statements were not well-grounded;

The employer was at fault in making the false statement: The fault that an employee must prove is based on the extent of the employer's knowledge that their statement was false; and

The false statement caused injury to the employee's reputation: An employee must prove that their injuries would not have occurred if not for their employer's false defamatory statements.

What Are Some Examples of Defamation of Character in the Workplace?

Defamation can operate in a variety of ways in terms of the workplace. When considering the actual defamatory statement, it matters less who makes the statement, and more about the truthfulness of the statement and how it impacts the employee.

The following are some anecdotal examples of defamation of character in the workplace:

  • A former supervisor tells a prospective employer that Sue stole from the business while she was employed with them. However, Sue did not steal anything. As a result of the supervisor's statement, the prospective employer decides to hire a different candidate. Sue loses out on the job she was otherwise qualified for;
  • A co-worker tells their supervisor that Sue lied on her job application. This leads the supervisor to start an investigation, and Sue is suspended without pay for several weeks until the investigation has concluded. However, Sue never lied on her job application; and
  • Sue's ex-husband tells a prospective employer that Sue exhibits less than desirable behavior and cannot be trusted. None of these things are true; however, the employer decides not to hire Sue based on this information.

In all three of these circumstances, Sue is the victim of defamatory statements that have affected her job opportunities, impacted her reputation, and caused her harm.

Slander in the workplace is possibly the most common form of defamation. As previously mentioned, spoken defamatory words are called slander. Slander involves the oral “publication” of defamatory remarks that are heard by a third party. Examples of slander in the workplace include:

  • Any sort of statement which implies that the victim is unable to carry out their office or employment;
  • Any assertion that the slandered person somehow lacks integrity; and/or
  • Statements that hurt the person's professional reputation.

An example of employee defamation of employers could be when a former employee shares false information about their previous employer. If these false claims damage the employer's reputation in the industry, the employer could sue the former employee for defamation. However, state laws will vary greatly in terms of whether this is allowed.

Are There Any Exceptions or Defenses to Employment Defamation?

There are two types of defenses to defamation. They are common law defenses, and constitutional defenses.

Common law defenses to defamation include:

  • Substantial Truth: If the statement was indeed true, then there is no basis for a defamation action. However, the burden is on the defendant for proving that the statement was actually true;
  • Absolute Privileges: Some situations rely so heavily on free discourse that the law provides immunity from defamation liability. Such privileges arise in governmental proceedings; and
  • Qualified Privileges: These privileges are based on the social utility of protecting communications that are made in connection with the speaker's moral, legal, or social obligations. An example of this would be how a former employer may provide information about an employee to a prospective employer.

The Constitution of the United States also provides defense for defamation. The availability of constitutional defenses will depend on the status of the person being defamed:

  • Public Officials: Public officials, such as politicians, cannot sue for defamation unless the author of the statements knew or should have known they were false;
  • Public Figures: Public figures, such as celebrities, also cannot sue for defamation unless the author of the statements knew or should have known they were false; and
  • Private Persons: Everyday citizens may sue for defamation and recover damages for injury done to their reputation and private lives. This remains regardless of whether or not the author of the statements knew or should have known they were false.

To summarize, the truth is always a defense to defamation. If the statement in question is untrue, then the statement counts as defamation. However, if the statement is true albeit unflattering, that would not be defamation. An exception to employment defamation would be a boss slandering employees. This may involve circumstances in which an employer provides a bad reference. Many states offer protection to employers who give bad references if those employers are acting in good faith. However, employers who intentionally provide false information, or act recklessly with regard to the truth, may find themselves involved in a defamation lawsuit.

Do I Need a Lawyer?

If you think that you have been a victim of libel or slander, an experienced personal injury lawyer can advise you of your rights and help you with the complex process of filing a lawsuit. If you have been charged with libel or slander, an attorney can help you determine any defenses that might be applicable.

 Call our office today at 212-994-7777 or complete the convenient online contact form to set up a consultation.