Key Concepts of Defamation

Definition of Defamation

Defamation can be defined as oral or written statements that wrongfully harm a person's reputation. There are two versions of defamation, libel and slander. Libel is when the defamation is written down in a permanent form such as print, writing or film, and slander is when the incident relates to spoken words. In all cases, the harm to reputation must be severe enough to lower the esteem of the plaintiff in the community by subjecting the individual to ridicule, contempt or even hatred ().

Defamation in the Internet can be classified as libel in view of that material communicated on the Internet is published e.g. bulletin boards, emails, chat rooms etc.

Elements of Proof

In order to proof defamation, one has to prove that what was said or written or published was false. The false and defamatory statement, usually of act and not opinion, must be made about another's reputation or business. Direct evidence, innuendo, insinuation or reference may establish this. And the statement must be referring to the plaintiff.

An unprivileged publication is made to a third party. Generally, if the defendant did not intend the publication to be viewed by anyone other than the plaintiff, there will be no liability caused. But it is unlikely that a defendant would be able to argue with this intention as related to publication on the Internet as very few online communications are considered private because of the global accessibility nature of the Internet.

Depending on whether the plaintiff is a public official or figure or the state law, a plaintiff may have to establish some degree of fault or negligence on the part of the defendant. The requirement for a person who is considered as a public official or public figure and who is a private individual is different. For one who is a public official or figure, the burden of proof is more demanding. He/she has to prove the defamatory statement was made with actual malice. Actual malice is the act of publishing or broadcasting the statement with prior knowledge the statement was false or with reckless regards as to whether that was false or not.

Also, the defamatory statement must result in actual or presumed damages. If the defamation is libel, damages are presumed to exist. The permanent nature of a libelous statement has led courts to allow recovery for libel without proof of actual or special damages in considering the ability, especially via the Internet, to distribute widely, and the fact that written words generally require more premeditation than those spoken. If the defamation is a slander, a plaintiff will have to establish actual or special damages unless the false accusation is slander per se where damage is presumed to exist. Special damage means pecuniary loss or loss capable of assessment in money terms. Examples include loss or refusal of employment and general loss of business. A causal link between the slander and the special damage must be established which is not too remote.