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Libel, Slander, Cyber Smear, & Defamation – A Nuts & Bolts Primer

The reputation of a business can be a critically important factor in whether that business is successful.  For this reason, defamation of a business can be legally actionable, meaning that if you or your business is defamed, you may be able to sue and recover money from the party who defamed you.

State Law Controls

The area of defamation is governed by state law. The information in this article is, therefore, subject to that caveat, which you must keep in mind as you read this. That said, most states’ laws on this subject are similar to those of each other.

Civil v. Criminal Law

The victim of defamation can sue the defamer for damages. Such a lawsuit is a civil action. However, 24 states’ laws make certain defamation a crime.

The Prima Facie Case

There are five basic elements of a defamation claim:

  • the defendant made a false statement about the plaintiff;
  • there was an unprivileged publication to a third party;
  • fault by the defendant amounts at least to negligence; and
  • publication damaged the plaintiff.

Again, I am speaking in terms of Illinois law, but this area of the law is reasonably consistent across most states.

Defamation Per Se

To succeed in a defamation case, the victim must generally be able to prove that the statement was false and caused them harm.

However, in most states, one can recover against a defamer without proving specific damages when the defamation at issue rises to the level of being defamation per se. Defamation per se occurs when the statements at issue are obviously or innately harmful to the victim’s reputation.

What Constitutes Defamation Per Se?

In Illinois law, courts recognize five types of statements considered defamatory per se. These are statements that accuse the victim of:

  • having committed a crime;
  • being infected with a loathsome communicable disease;
  • being unable or lacking the integrity to perform one’s employment duties;
  • lacking the ability to perform in one’s profession; and
  • engaging in adultery or fornication.

As a practical matter, though, without showing specific damages, the plaintiff can win and be awarded a mere token amount.

Types of Defamation: Libel v. Slander v. Cyber Smear

Libel and slander are both forms of defamation, which is the act of making a false statement about someone that harms their reputation. The main difference between libel and slander is the medium through which the statement is made.

Libel

Libel is a written or published false statement that harms someone’s reputation. This could include statements made in print or online through social media or a website. In order to prove libel, the victim must show that the statement was false, was made to a third party, and caused harm to the victim’s reputation.

Slander

Slander is a spoken false statement that harms someone’s reputation. This could include statements made in person or over the phone, as well as statements broadcast on radio or television. Slander can be more difficult to prove than libel because there is often no written record of the statement. The victim must typically rely on witnesses to testify to what was said.

Cyber Smear

Cyber smear is a specific type of defamation that occurs online. It involves using social media or other online platforms to spread false or damaging information about an individual or organization. Cyber smear can take many forms, including posting false reviews, spreading rumors, or manipulating photographs to create a negative image.

The Truth as a ‘Defense’

In lawyer-speak, truth is not technically a defense to defamation, though it gets one to the same result. Here’s what I mean: as noted above, there are five elements that a plaintiff needs to successfully allege and prove to make a case of defamation.

One of these elements is that the statement at issue is false. If the plaintiff cannot prove the falsity of the statement, then the plaintiff’s case fails, and there is no need for the defendant to plead an affirmative defense.

Affirmative Defenses

An affirmative defense comes into play in a lawsuit when the elements of a legal claim can be proven. In some situations, a defendant can essentially take the position that “Yes, all the elements of the claim against me are true, but I nonetheless am not liable because I have an affirmative defense.”

The First Amendment & Fair Comment and Criticism

Any defamation claim is always considered in light of the First Amendment’s protection of free speech. For this reason, there can be an affirmative defense in the case if the statement at issue is about a matter of public concern or is about a public figure.

Privilege

Certain types of statements are privileged, which means they are immune from defamation lawsuits. For example, statements made in a court proceeding or a legislative hearing may be privileged.

Substantial Truth

Under the ‘substantial truth’ doctrine, a statement that contains small factual inaccuracies may still be considered true if the general concept (gist) of the statement is true.

Innocent Construction

In some states, a seemingly defamatory statement may be considered non-defamatory if the statement is subject to an innocent construction. That is, the statement was not intended to be taken as a factual statement, and a reasonable person would not have understood it as such. For example, a defendant raising the innocent construction defense may argue that the statement was intended to be understood as a figure of speech or hyperbole.

Go back and look at the discussion of defamation per se above. Do you see the relation between this and that? Simply stated, a statement cannot (as a matter of logic) constitute defamation per se if it is subject to an innocent construction.

Statute of Limitations

A defamation lawsuit may be barred by the statute of limitations.

The purpose of a statute of limitations is to ensure that legal claims are brought in a timely manner, while the evidence is still fresh and the parties to the lawsuit are still able to remember the relevant details. The applicable statute of limitations depends on the claim and the jurisdiction.

Related Claims

When one files a lawsuit, regardless of what is about, one does so by filing a complaint. And the complaint commonly contains multiple counts, each outlining a different claim against the defendant.

A lawsuit that alleges defamation commonly also alleges some or all the following claims:

  • False light invasion of privacy: This claim is similar to defamation but involves the publication of information that puts the plaintiff in a false light rather than making a false statement about the plaintiff.
  • Intentional infliction of emotional distress: This claim is based on the idea that the defendant’s conduct was extreme and outrageous and caused the plaintiff to suffer severe emotional distress.
  • Negligent infliction of emotional distress: This claim is like intentional infliction of emotional distress but is based on the idea that the defendant was negligent rather than intentionally causing the plaintiff’s emotional distress.
  • Invasion of privacy: This claim involves the unauthorized disclosure of private information about the plaintiff or the unauthorized intrusions into the plaintiff’s private affairs.
  • Misappropriation of likeness: This claim involves the unauthorized use of the plaintiff’s name or likeness for commercial gain.

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[Editor’s Note: To learn more about this and related topics, you may want to attend the following on-demand webinars (which you can watch at your leisure, and each includes a comprehensive customer PowerPoint about the topic):

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About Jonathan Friedland

Jonathan Friedland is a principal at Much Shelist. He is ranked AV® Preeminent™ by Martindale.com, has been repeatedly recognized as a “SuperLawyer”, by Leading Lawyers Magazine, is rated 10/10 by AVVO, and has received numerous other accolades. He has been profiled, interviewed, and/or quoted in publications such as Buyouts Magazine; Smart Business Magazine; The M&A…

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