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Defamation

Defamation is the act of causing damages to a person by making a defamatory statement against them published to a third party with fault amounting to at least negligence. Defamation is categorized as a tort or civil wrong; therefore, victims can file a case and make a claim against the person who made the defamatory statement using a civil lawyer in their area.

But in order to prove defamation, four elements must be present: 

  1. A defamatory statement must have been made. 

A defamatory statement is a bad and false statement that is of fact, which means it can be proven as true or false.

  1. It should have been published to a third party.

Publishing in this sense means it is either spoken or written. When an oral defamatory statement is made, it is called “slander.” If the statement is written, it’s called “libel.” Both of these are forms of defamation. 

In order for a defamatory statement to be deemed “publish,” it doesn’t matter if it reached hundreds of people. All it takes is the statement to be spoken to another person or written somewhere that is visible to others. 

  1. It should have been done with fault amounting to at least negligence. 

This means that the person making the defamatory statement was careless and didn’t bother checking if the information was true or false before defaming another. 

If however, the subject is a public figure, this element changes a bit because public figures do not get as much protection and right to privacy as private individuals. When the subject of the defamatory statement is a public figure, negligence is not applicable. Instead, the statement must have been made with actual malice, that is, knowing that it was false. 

  1. It must have caused damages to the victim. 

The person defamed must have sustained some sort of damage, whether physical, emotional, psychological, mental, etc. And this can be a difficult element to prove. 

There are times when defamation causes extreme emotional distress, which harms or hurts the victim. In these cases, the damages are quantified. 

These days, because of the advent of social media, people are becoming more careless about what they say online. And there are actually some businesses that are commencing litigation on customers who have posted negative reviews about them, saying that it’s defamation. These businesses try to prove that they lost profit or customers because of these statements, and hence have suffered damages and seek monetary compensation. 

How to defend yourself against a defamation claim

  1. Prove the truthfulness of the statement.

Truth is an absolute defense to defamation. If the defendant is able to prove that the statement, even if it was bad, is true, it cannot be categorized as defamation because according to the elements, the statement must be false. 

  1. Opinion vs. objective statements of fact

We enjoy the freedom to express our opinions and thoughts about something or someone. This is a constitutionally protected right. When it comes to defending against a defamation claim, opinions can be a good defense because these are personal and difficult to quantify. 

Reviews left about businesses, and their products or services can be defended as opinions, and therefore, not defamatory. 

  1. Litigation privilege

Usually, defamatory statements can be made in the courtroom during litigation when the parties are in heated argument or dispute about the subject matter of their case. But if a defamatory statement is made in litigation, one party cannot go after the other and make a defamation claim. 

This is because of litigation privilege, which shields statements made during litigation from being the subject of a defamation claim. 

Conclusion 

Defamation cases are serious business, but if you know the legal standards of determining defamation, you can defend yourself from claims of slander or libel. 

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Aaron
Belzer

Managing Partner - Civil Litigation

Boulder

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