Defamation is the general cause of action for when someone makes a false statement of fact about another person. Libel is the written form of defamation; something published in writing. Slander is the verbal form of defamation; something said to someone else.

There are two separate defamation doctrines. One applies to those who are called “private persons”. The other applies to those who are referred to as “public figures”. The burden of a public figure to prove defamation is much higher.

Generally, in a defamation case in which the comments are directed about a “private person”, the Plaintiff must prove that the Defendant made a false statement of fact, that the Plaintiff was without any legal privilege to make the statement or exceeded the privilege, that the statement caused actual damages, and that the statement was made at least with negligence (recklessness or intentional malice may also be shown but are not necessary in proving defamation against a private person).

The negligence must be proven by a “preponderance of the evidence” (sort of like saying 51/49; enough to tilt the scales). As noted, there is no requirement that the Plaintiff prove any intent to harm (actual malice) or even recklessness.

Also, if the statement is the type which is considered “per se” defamation (i.e. about one’s criminal background, business character, chastity, and certain other areas), then even actual damages need not be proven because they are presumed. Absent proof of actual damages, a Plaintiff in a “per se” case may recover nominal damages (i.e. $1). However, in “per se” cases, malice is also presumed.

This is helpful because it takes away the Plaintiff’s need to prove negligence. It is also helpful because it enables a Plaintiff to seek punitive damages. Thus, in “per se” cases, where no actual damages are proven, the potential for a substantial recovery still exists because of the opportunity to seek puntive damages.

It should be noted that in “per se” cases, the presumption of malice may be rebutted by evidence of the Defendant. If the presumption is rebutted, then it is still the Plaintiff’s burden to prove at least negligence.

The second form of defamation is that which involves statements about a “public figure” (i.e. a politician or entertainment celebrity). The elements of proving a false statement of fact are the same but there are certain differences. In a public figure case, the Plaintiff must prove actual damages. Also, the Plaintiff must prove malice; either that the Defendant made the false statement with the intent to injure or with a reckless disregard for the truth of the statement.

Also, the level of proof necessary for the public figure Plaintiff to prove malice is much higher than the level of proof necessary for the private person Plaintiff to prove at least negligence. In public figure cases, the proof of malice in most states is by “clear and convincing evidence” (i.e. more than a preponderance but less than the criminal burden of “beyond a reasonable doubt”). Thus, in public figure cases, the public figure who claims defamation must prove much more because they are viewed as fair game for public comment.

Also, it is important to understand that an ordinarilly private person may make themselves a “limited public figure” for a particular issue. For example, if an ordinary private person decides to lead the charge on a public issue and puts himself out into the public about the issue, he may become a limited public figure for that issue and any claim of defamation would have to be evaluated and proven based upon the public figure legal precedents.

In all defamation cases, there are numerous potential defenses which a Defendant might assert against the claim of defamation. The single most important defense is “truth”. If truth of the statement is proven, then there cannot be any defamation.

Of course, in public figure cases, even if truth cannot be proven the Plaintiff cannot prevail absent proving malice typically by the higher clear and convincing evidence standard and by proving actual damages. This more difficult level of proof in public figure cases is intentionally designed to minimize the potential for public figures to go after anyone who comments about them and to protect the 1st Amendment constitutional right of free speech, particuarly as it applies to political debate.

There are numerous other defamation issues beyond the scope of this general overview. A particuarly new area of defamation is in the arena of posts on the Internet.

Most important, though, is in all defamation the Defendant may be liable only for statements of fact which are false. Statements of opinion are always protected. Sometimes, though, what is a statement of fact or opinion can be confusing and may eventually be up to a jury. There is also a statement referred to as a statement of “mixed fact and opinion”. This is an area where counsel is particularly important.

Prior to pursuing a defamation case, one should consult an attorney to ensure the viability of the claim and to really focus on which complained of statements may provide a basis for relief. If sued for defamation, an attorney is very important as this area of law can be quite complicated and the potential damages quite substantial.

Stuart M. Address, Esq.

Law Offices of Stuart M. Address, P.A., Stuart, Florida

Additional resources provided by the author

Defamation is a readily searchable concept on the Internet. One should take care, though, to determine the source and whether that source has a particular interest, motive, or bias for the information being provided.

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