The Basics of Defamation Law

The government can't punish a person for defamation because it's not a criminal offense. Defamation is a tort, however, and a person can sue someone if he or she suffers injury because of that person's defamatory statements. Defamation can be a tricky area of the law because there is a fine line between freedom of speech and the right of a person to protect his or her reputation.

Defamatory statements fall into two categories: libel when it's written, and slander when it's spoken. Regardless of which form it takes, in order to be successful in a defamation lawsuit a person must usually show that:

1. A person made a statement;

2. The statement was published;

3. The statement caused injury;

4. The statement was false; AND

5. The statement didn't fall into a privileged category.

These are the general elements of defamation, but it's important to check exactly what constitutes defamation in your state.

Defenses to Defamation

Whether it's libel or slander, there are a variety defenses available to a defendant in a defamation case. One absolute defense to defamation is consent. If the plaintiff consented to the publication of defamatory information about him or her, the consent is a complete defense.

Another defense to libel or slander is truth. Traditionally, it was presumed that a statement was false once the plaintiff proved it was defamatory. Under modern law, if a plaintiff is a public figure or official, he or she must prove the statement is false in order to recover damages. Some states have extended this requirement to any plaintiff. If proving falsity is not a requirement, truth can be an affirmative defense in a defamation case.

Finally, privilege can also serve as a defense in a defamation case. There are absolute and conditional privileges. Absolute privilege means that the nature of the statement or the intent of the person making the statement doesn't matter, the privilege always applies. Examples of circumstances where there is absolute privilege are: judicial and legislative proceeding, publications required by law, some executive statements and publications, and publications between spouses.

Conditional privilege, on the other hand, depends on the circumstance in which the statement was made. For example, statements made for the protection of the publisher's interest or to ensure the well being of a family member can be protected by conditional privilege. The defendant must prove that he or she meets the conditions established for the privilege in order to succeed in a conditional privilege defense.

Hiring a Lawyer

If you or someone close to you has been the victim of defamatory statements, you may want to contact a local personal injury attorney. It's important to remember that each state has its own statute of limitations for filing a defamation action. For this reason, it's in your best interest to contact an attorney sooner rather than later.