Defamation is a cause of action for written or spoken communications that cause a person to suffer damage to their reputation, or have a tendency to cause such damage. Defamation is commonly known as slander in the event of a defamatory statement that is spoken, and libel when the defamatory statement is written or otherwise recorded. Slander and libel are treated similarly for purposes of a defamation lawsuit.

Whether the harmful statement was written or spoken, a plaintiff must prove that a defamatory statement was made, that the statement was published to a third party, that the person publishing the statement was negligent as to its truth or knew that the statement was false, and damages resulting from the defamatory statement.

In order for a statement to be defamatory, it should tend to harm one’s reputation. That can mean that it makes others think less of person about whom the statement is made, or deters others from wanting to deal with that person, or tends to lower that person’s standing in the community. For a statement to be defamatory, it must assert a fact; it cannot be merely an opinion, and the statement must be understood by a reasonable person to be an assertion of fact.

The requirement that the defamatory statement be published to a third party means that the statement must be spoken to someone other than the person about whom the statement is made, or must be written and delivered to some other than the person about whom the statement is made. This requirement is easily met where the defamatory statement is published in a newspaper, broadcast on television or the internet, or spoken to an audience. This requirement of publication to a third party cannot be circumvented by the person about whom the statement is made relaying the defamatory statement to a third party.

Private parties bringing a defamation lawsuit related to a private matter must prove that person making the defamatory statement was negligent as to the truth or falsehood of the statement. Negligence is the failure to exercise reasonable care in making that determination. The person making the defamatory statement does not need to know that the statement is actually false. This requirement changes when the person bringing the defamation lawsuit is a public figure or the lawsuit relates to a matter of public concern. Under those circumstances, the plaintiff must prove knowledge that the defamatory statement was false, or a reckless disregard for whether or not the statement was true or false. These circumstances also raise the burden the plaintiff must carry in proving that the statement was false.

Damages are a crucial issue in a defamation lawsuit. In situations where the statement is specifically directed at the plaintiff and where the statement is of a variety that is clearly and obviously injurious, the plaintiff does not need to prove actual damages. This is known as per se defamation and common examples include stating that an individual has committed a crime, or has a communicable disease, or relates to a person’s profession, trade or business. These kinds of defamatory statements do not need to cause actual damage; it is enough that they have a tendency to damage one’s reputation. Where the reputational harm is not so obvious, a plaintiff must prove that the publication of the defamatory statement actually caused monetary losses, including harm to reputation that causes actual monetary loss.

The truth of a statement is a complete defense to a claim of defamation. There will be no liability under a defamation cause of action if the allegedly defamatory statements are demonstrated to be true. Additionally, if an individual consents to the publication of the defamatory statement or if the statements are made during a judicial proceeding, no liability will lie. There is a partial or qualified defense to defamation where the defamatory statement is made to a law enforcement officer or in certain employment-related situations. A defamation lawsuit can overcome a qualified defense where the plaintiff can demonstrate that the person making the statement knew it to be false, or was reckless with regard to the truth or falsity of the statement.

A cause of action for defamation must be brought within one year of the publication of the defamatory statement.