Legal-Ease: Basics of defamation, libel and slander

Nobody likes being talked about negatively. When a person communicates something negative about someone else, the communication can sometimes be legally “defamatory,” which can give rise to legal recovery in favor of the person about whom the communication was directed.

Two common types of defamation are libel and slander. The difference between libel and slander is that libelous statements are written, and slanderous statements are verbal/spoken.

To recover against someone for defamation, there are five requirements that the allegedly defamed person must prove.

First, the statement must be totally false. Opinions or rumors are generally not considered false as long as the statement is clearly conveyed as an opinion or if the statement is made in the context of calling the statement an opinion or rumor. In other words, saying that, “If the rumors are true, you are a thief,” would probably not be considered false, because the statement is technically about the topic of a rumor and not the rumor itself.

Second, the statement must be about another person who is also the person who is alleging defamation. Thus, if someone allegedly defames my sisters, only my sisters (and not I) can prevail against that alleged defamer.

Third, the statement must be communicated. If someone writes something false about another person in a diary that only the author can access, there is no defamation, because the statement was not communicated to someone other than the author and the person about whom the statement was made.

Fourth, an alleged defamer must either be negligent or at fault in making the statement.

If the person about whom a false statement is made is a “private” (non-public) person, the statement only needs to have been made negligently (sloppily, loosely or without respect or caution as to the statement’s accuracy) to be defamatory.

Private persons are generally all people other than (a) public officials (government employees), (b) public figures (people in positions of such persuasive influence that they invite attention and comment on most/all societal matters), and (c) limited purpose public figures (like public figures but only as to certain controversies or public issues).

If the person about whom a false statement is made is anyone other than a private person, the statement needs to have been made with malice (actual negative intent) to be defamatory.

Fifth, a defamatory statement must either (a) cause traceable, direct harm to the person about whom the statement is made or (b) involve certain “almost always harmful” topics.

Almost always harmful topics (called defamation per se) include statements on the following topics: committing criminal offenses involving dishonesty/immorality, infection with a contagious disease for which people are shunned, actions related to a person’s occupation or trade and anything that would subject a person to public ridicule, contempt or hatred.

Defamation is challenging to prove, because all five requirements must be proved. The internet has made proving the five requirements even more difficult, because, as one court recently stated, average internet surfers naturally expect to see exaggerated statements on the internet.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.