The terms slander, libel, and defamation are often confused with one another because they all fall into the same area of law. All of these terms refer to a situation where someone knowingly communicates a false statement about another person’s reputation, and that person suffers damages in some form because of it. But these terms are not all interchangeable. Slander, the spoken communication, and libel, the written communication, are both types of defamation.
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Differences Between Slander, Libel, And Defamation
Defamation is the legal term for when someone, the defendant, makes a false or defamatory statement about another person, the plaintiff, to a third party causing damage to the plaintiff’s reputation or character. It sounds straightforward enough, but there are some key elements needed to have a defamation case:
- The untrue statement is about the plaintiff. It is not a general statement. I can be about a fictional character if it is obvious the fictional character is identifiable as the plaintiff.
- The statement is communicated to a third person or group of people. It is not defamation for the defendant to communicate the statement just to the plaintiff.
- The defendant has actual malice. That means they either know the statement was false, should have known it was false, or had reckless disregard for whether it was false or not.
- The statement must be disseminated through publication or communication.
- The plaintiff had to have suffered some damages or harm because of the statement.
There are two categories of the tort of defamation: slander and libel. As defamatory statements can be communicated through any medium, libel is defamation that is written, and slander is defamation that is spoken. Examples of libel include defamatory statements in the written form such as in the newspaper, on a social media page, in an email, on a blog post, etc. Examples of slander include oral forms of defamation such as in a news report, video post, radio broadcast, or just speaking face to face. This means defamation does not necessarily have to be a publication; it could be gossip and rumors.
Historically, the courts treated slander and libel differently, and so the distinction of how the defamatory statement was communicated was important. Today, however, they are treated the same: both as forms of defamation in general.
Legal Difference Between Defamation And Stating An Opinion
Everyone has a right to free speech, and therefore, an opinion about someone is not defamation. However, it must be clear that it was meant as an opinion, not meant with ‘actual malice.’ For example, the statement: “I think Joan is mean” is clearly an opinion and not defamation. But, the statement: “I think Joan is stealing money from the business” is a different story. Although the statement seems like an opinion, starting with the words “I think…,” the rest implies a statement of fact — that Joan is committing a crime — and, therefore, would be considered a defamatory statement.
Over time, certain kinds of false statements have been clearly viewed as defamatory by courts, such as statements imputing that the person committed a crime, is infected with a particular illness, or is incompetent at performing their job. However, examples of defamatory statements are virtually limitless and can include statements implying the person is immoral, lacks integrity, has been unfaithful, or suffers from financial losses.
Defamation law is considered by the courts to be very circumstantial. The same statement made in a different situation by, to, or about a different person can make all the difference. For instance, consider this false statement: “Just wait until the embezzling Ms. Jill White gets her hands on it.” If I said that this statement was spoken by a stand-up comedian during a performance about an actor based on a recent role she played, the circumstances surrounding this statement clearly show that it is meant to be a humorous but not slanderous statement. However, imagine the same statement being emailed by one board member about another trusted member of the board to the CEO. The statement then implies that Jill is using her position to embezzle from the company and could put her job at risk. This would be an example of a libel case.
Potential Damages From A Defamation Case
In order to make a defamation claim, it is essential for the plaintiff, the person whom the false statement was about, to have actual damages. The plaintiff has the burden of proof to show that they were defamed in the eyes of the community or group. They suffer special damages to their reputation, lost wages or their ability to earn a living, personal injury, pain and suffering, or an emotional reaction such as shame, humiliation, or anxiety.
The U.S. Supreme Court had determined that some false statements qualify as defamation per se. This meant that if the statement falls under one of these categories, it is assumed the plaintiff suffered damages. These include statements imputing that:
- The plaintiff committed a crime.
- The plaintiff is infected with a particular illness.
- The plaintiff is incompetent at performing their job.
Defamation cases are civil suits in state court, where the penalty is financial compensation. If the plaintiff succeeds, the defendant must pay monetary damages to the plaintiff. In extreme cases, the court can order the defendant to pay punitive damages, those designed to punish the defendant, but it is extremely rare for a defendant to go to jail in a slander or libel case.
Defending A Defamation Lawsuit
Truth is an absolute defense against an allegation of slander or libel. That means that if the defendant can prove the statement was in fact true, there is no defamation case. Opinion is also a frequent defense to defamation. The defendant alleges the statement is an opinion that is protected under the First Amendment right to freedom of speech.
For public interest plaintiffs, such as celebrities, and politicians, you don’t even have to prove the statement was true, but just that you were not reckless in determining whether it was true or false. This is a negligence defense that can be used. For example, if you claimed that an innocent co-worker committed a crime 20 years ago, they would probably have a good slander or libel claim against you. However, if you claimed it was a local politician who committed a crime 20 years ago, even if they hadn’t, they would have to prove that you were intentionally or recklessly lying about them. This is because the Supreme Court has said in multiple opinions matters of public concern deserve higher protections under the First Amendment’s right to freedom of speech.
Privilege is another defense against a defamation lawsuit. There are two types of privilege: absolute and qualified. Absolute privilege means the defendant had the absolute right to make the statement. Qualified privilege means the defendant may have had some right to make the statement. Absolute privilege applies when the statement is made between spouses, during judicial proceedings, by high government officials or legislators during legislatures debates, or during political broadcasts and speeches. Qualified privilege applies to certain statements made in self-defense or to warn others of danger, made by a former employer to a potential employer about an employee, made in a book or film review, made in governmental reports of official proceedings, made by lower government officials, or made by citizens testifying in legislative proceedings.
Real-World Example Of Slander
Susan is a recently hired teacher in a school, and she is a very hard worker. She doesn’t really know many of her co-workers yet, except for Jane, who she grew up with. Jane never liked Susan and hasn’t observed Susan’s work. Nevertheless, Jane tells another teacher in the school, Hugh, “I feel Susan is very lazy.”
While this appears to be an opinion statement because of the qualified statement, “I feel,” given the circumstances, it is possible for Susan to have a defamation suit against Jane for her slanderous statement. For instance, imagine Hugh spreads this rumor, and therefore Susan’s reputation in the school is defamed. Word gets back to the principal, causing Susan to be embarrassed and humiliated. She becomes shunned by her co-workers. She is so unhappy at her job that she ultimately quits. In some states, Susan would have a defamation of character claim against Jane because of her emotional trauma. However, in others, because the damages are not monetary, she would not have a claim.
Real-World Example Of Libel
John is running for town mayor. Rachel used to work for John as a secretary five years ago. She never liked John and doesn’t want him to be town mayor. She posts on her social media page, “I can’t believe they’d let this new candidate run for mayor. I wonder how many other women he sexually harrassed?” even though it is a complete falsity.
Even though John is not mentioned by name, it could be seen to clearly target him as he is the only new candidate. The question also implies, rather than outright states, that John sexually harassed Rachel when she worked for him. Subsequently, John loses the election. John could have a defamation suit against Rachel for falsely accusing him of sexual harassment. The difficulty for John, as a public official, is that he will have to prove that Rachel was intending to give a false statement in order to defame his reputation. Showing that Rachel acted with negligence will not be enough. He would have to show his damages, from losing the election, were a result of Rachel’s defamatory statement.
The Bottom Line
Slander and libel are the two types of defamation. Defamation is knowingly making a false or defamatory statement about one person to a third party, and that person suffers harm or damages by the defamation. Slander is defamation in oral form. Libel is defamation in written form.
Frequently Asked Questions
How do you prove libel and slander?
The essential proof required for libel and slander is the defendant’s intent. However, that proof of intent is different depending on whether the plaintiff is a private or public person. If the plaintiff is a private individual, they only have to prove that the defendant acted with negligence when making the false statement, whereas a public figure plaintiff has to prove the defendant acted with intent or reckless disregard for whether the statement was true or not.
Is slander worse than libel?
Even though both slander and libel are forms of defamation, historically, most courts consider libel to be a more serious crime than slander. This was because written words are able to last longer than spoken ones. However, most state courts have modernized their slander laws to carry as much weight as libel laws. This is because of the recent technological developments that have allowed for spoken false statements in audio or video recordings to be just as lasting and damaging as written ones.
What are the five elements of defamation?
There are five elements required for a defamation case:
- The statement about the plaintiff was false.
- The defendant communicated the statement to a third party.
- The defendant knew or should have known the statement was false.
- The statement is spread by the spoken or written forms of communication.
- The plaintiff suffered harm or damages.
