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Want to learn more about defamation?
Curious as to when someone can sue for telling lies?
Stay to the end, as I go through the five elements in a defamation claim.
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Hi, this is Beau Baez, and today I want to discuss Defamation.
Defamation is a false statement published to a third party, by the actor, of and concerning
the plaintiff, tending to cause damage to the plaintiff’s reputation.
After I go through all five elements, I will quickly explain how Defamation has been changed
by the U.S. Constitution.
1: False statement.
To meet this element, the statement must be able to be proven true or false.
This means that opinions don’t qualify.
For example, someone says that a restaurant has the worst tasting pasta in the entire city.
That is an opinion and therefore the restaurant owner cannot due for defamation.
In contrast, if someone says that the pasta at that restaurant killed his son, that is a
statement that can be shown to be true or false.
2: Published to a third party.
The statement must be made to someone other than the plaintiff.
If you privately go up to someone and you falsely accuse them of murder, the plaintiff cannot
sue for defamation.
However, if someone overhears the conversation, then this element is met.
Keep in mind that self-publication doesn’t count.
For example, after the private conversation, the plaintiff tells everyone he knows about
the conversation with the defendant.
Because the plaintiff self-published the false statement, this element is not satisfied.
3: By the actor.
The defendant must be the person who made the statement.
However, there is an exception known as the repeater rule.
If someone repeats a defamatory statement, the repeater is also liable for defamation.
For example, suppose that Stranger overhears the conversation accusing the plaintiff of
murder.
Stranger then sends an email, quoting what was said.
Stranger is then liable for defamation because he is a repeater.
4: “Of and concerning” the plaintiff.
Normally, this element is not at issue in a defamation case.
But there are some cases where the element is contested.
In one type of case, a statement may not name the plaintiff, but everybody knows who was
being discussed.
For example, someone says that a former African-American President sold government secrets.
Since this can only be one person, it doesn’t matter that the person’s name wasn’t used.
Also, a statement must be directed at an identifiable plaintiff.
Again, for example, a statement that says all men are liars cannot be brought by some man.
5: Tending to cause damage to plaintiff’s reputation.
This is what we call defamatory.
To be defamatory, the person must be held up to scorn, ridicule, and contempt by a right-thinking
group of people.
Suppose, for example, that an archaeologist claims that another professional can’t read
ancient Greek, even though that person’s entire career is based on translating ancient
Greek.
Though most of society wouldn’t think this is defamatory, other archaeologists would.
Therefore, this would qualify as a defamatory statement.
How about another example. Suppose that Bonnie, a career criminal,
is known by other criminals as being very tough.
Police officer makes a false statement, saying that Bonnie is actually very nice and would
never hurt anyone.
This false statement causes Bonnie to be held up to scorn, ridicule, and contempt by other
criminals.
Because criminals are not right thinking members of society, this element is not met
in a defamation action.
U.S. Constitution.
Before I begin, what I am about to say is a broad oversimplification of a complex topic.
The Supreme Court of the United States has altered defamation by adding some requirements
based on the plaintiff’s status.
If the defamed person is a public person, like a politician, an actor, or a rock star, then
the plaintiff must also prove that the defendant acted with malice.
To establish malice, the plaintiff must prove that either the defendant knew the statement
was false or was reckless as to the statement’s truth or falsity.
This is why newspapers usually won’t run stories unless they get two reliable witnesses—that
way they can’t be accused of acting with malice.
Next, if the plaintiff is a private person in a public matter, then the plaintiff can
recover actual damages if they're able to prove that the defendant was negligent as to the truth or
falsity of the statement he made.
Finally, the law is a bit cloudy as to what constitutional constraints, if any, should
apply to a private person in a private matter.
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