Going back to your years on the playground, who would have thought that the bully who was calling other people names or spreading rumors about someone may have been committing defamation. Defamation is a broad area of law that encompasses libel and slander (keep these two in mind as I’ll discuss the difference between the two further below). The actual definition for libel is “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
Before going into the difference between libel and slander, here are the California elements for finding that someone has committed defamation: (Cal. Civ. Code §§ 44, 45a, and 46.)
1. publication of a statement of fact
2. that is false,
4. has a natural tendency to injure or which causes “special damage,” and
5. the defendant’s fault in publishing the statement amounted to at least negligence.
1. Publication means that the statement was communicated to a third party who understands the meaning of the statement and who it is applied to. The requirement to constitute publication is VERY low. Any posting online easily fulfills the requirement and only 1 person needs to understand that the statement is defamatory and who it is directed to. For instance, posting that “someone has a sexually transmitted disease” on its face won’t appear to be defamatory, but so long as 1 person that reads that post knows who you are talking about, this element is met.
2. Falsity is the entire basis of defamation. If what you are saying is true, there cannot be defamation and truth is an absolute defense to a defamation claim.
3. “Privilege” comes in a few different ways such as the fair report privilege, the opinion and fair comment privileges, and substantial truth. Fair report comes from a public document or statement. Opinion and fair comment are based on opinions and subjects that can’t necessarily be proven true or false. For instance, “I think he’s an idiot” compared to “I think he’s a murderer”, the idiot statement would likely fall under the opinion and fair comment privilege while the murderer statement probably won’t. Courts look at the “totality of the circumstances” in determining whether the privilege applies. Substantial truth requires that the statement be mostly true, it doesn’t have to be 100% true, but mostly.
4. Generally, a defamation claim requires some kind of injury/damages to have been suffered. California does it a little differently than other states in that damages are not necessary if the statement is defamatory on its face. This means that no other evidence is needed to show that it is defamatory. For instance “he must of done something to have won that game” is arguably not defamatory on its face because you need more information in order to come to the conclusion that it is defamatory. “He only won the game because he cheated” would be defamatory on its face since there is no other evidence needed to see that the statement is defamatory.
5. Negligence can be a complicated topic but generally speaking, it is when a person is not acting with the reasonable level care that is due in a situation. This element goes towards the truth of the statement. For instance, if someone tells you that a guy killed someone and you post that online without looking it up, or figuring out if it was true, you likely acted negligent as to determining whether the statement was true or not. This last element is a huge part of the law and it varies when dealing with different people. A private person has the lowest standard whereas a public figure (those in the “public spotlight” for one reason or another would likely be considered a public figure, or a limited public figure) requires that there be actual malice for a finding of defamation. To put it simply, actual malice means that the person that wrote the defamation purposefully wrote it to injure the other person.
Libel v. Slander
Going back to libel versus slander, slander is a defamatory statement that is spoken and libel is a defamatory statement that is written. There are certain types of slander which are automatically defamatory. These are statements that convey that someone is a criminal, that someone has a disease, something that injures them professionally, and a statement about someone’s sexuality (they’re a cheater, impotent, etc.)
So, that is a VERY brief crash course in defamation. This area of law is substantially more complicated and there’s a lot more to it as well. For more information on or legal help dealing with slander, libel, and defamation, contact Biletsky Law.