Analyze the statement
Decide if the statement made against you falls into the category of slander, libel, or the blanket category of defamation. Slander refers to spoken statements such as in speech or over the radio. Libel refers to written defamation such as in a book or newspaper.
- Since written statements tend to cause injury for a longer period of time, libel can be more harmful than slander. A published statement is also easier to prove after the fact, making it a stronger case when filing a suit.
Prove that the statement was published
Published statements make a better case when seeking damages because you can more easily prove the mass exposure of the statement. Legally, “published” refers to information heard by a third party outside yourself and the defamer. Published doesn’t necessarily mean printed in a book or newspaper, although that also counts. A published statement can also be made public in the following ways:
- On television or radio.
- In a speech.
- On a leaflet or picket sign.
- In loud conversation, which you could prove with the help of witnesses.
- Via gossip, which you could prove if you have an email chain or other witnesses.
- Via social media sites, including Twitter, Facebook, Youtube, and others.
Prove the statement was false.
A defamatory statement must actually be false. If true, you don’t have grounds to sue. This includes if it damaged your reputation.
- Statements construed as opinions aren’t considered defamatory in most cases. An opinion is subjective. You can’t prove it objectively false.
- For example, the statement, “I think that Aaron is dumb because he likes ice cream” would be an example of an opinion since the person making the statement provides a basis for the opinion (i.e., Aaron likes ice cream).
- On the other hand, the blanket statement, “I know for a fact that Aaron was convicted of murdering his mother” would unlikely be considered an opinion since the person reading or hearing the statement would have to assume damaging facts.
Prove that the statement caused injury
You must show that the statement harmed you in a concrete way. Assess how the statement affected you. Determine whether you can prove that your life changed for the worse because people believed the statement and now view you differently. If nobody believed the statement, then there was no real harm.
- If you’ve lost work, are shunned by friends and family, or were harassed as a direct result of the statement, you can consider it to be injurious. If you already had a bad reputation (or if most people didn’t seem to believe the statement), it will be hard to prove that you were defamed by this particular statement.
Prove “special damages.” For slander in particular, you have to prove “special damages.” “Special damages” refer to damages that are capable of being calculated, typically to the dollar. Examples include lost earnings or lost future earnings.
- Some use a “defamation per se” standard, which means that the statements are defamatory on their face. The four most common examples include: the implication that you have a contagious disease, such as HIV; that you committed a criminal offense; that you are unchaste or committed adultery; or that your professional reputation is called into question.
Determine if the statement is protected by “absolute privilege.”
In some legal situations, people are asked to make statements without having to worry that they will get sued for defamation. Such statements are protected by “absolute privilege.” For example, a witness could testify falsely in court and the statement may have the same consequences as any other defamatory statement, but that witness is protected by absolute privilege.
- Other statements protected by “absolute privilege” include statements made during judicial proceedings; statements made by governmental officials; statements by legislators during legislative debates; statements made during political speeches or broadcasts; and statements between spouses.
Determine if the statement is protected by “qualified privilege.”
In some circumstances, people have a right to make a particular statement. Such statements are considered “qualified privileged.” For example, statements by an employer about whether a former employee is fit to perform a new job may be protected by the qualified privilege.
- Other statements protected by “qualified privilege” include statements in governmental reports or official proceedings; statements made by local governmental officials; testimony by citizens at legislative proceedings; statements made in self-defense or made in an attempt to warn others of danger; some types of statements made by former employers to a potential employer about an employee; and statements published in a book or film review considered criticism.
- Depending on your state, if a statement is protected by “qualified privilege,” the person suing must prove the person making the alleged defamatory statement did so intentionally, recklessly, or with malice, hatred, spite, ill will, or resentment.
Free online defamation monitor
Defamation cases are growing worldwide by over 20% a year. With the help of the internet, a single case of defamation can potentially reach millions of people in less than 24 hours. Because online defamation and the damage it causes continue to spiral out of control, the team at Repumatic created a tool specifically built for tracking online defamation.