What are the Elements of Defamation?

We can answer all your questions about defamation, but sometimes if you have a general understanding of the law, you can ask better questions about the facts of your case.  Some attorneys think a defamation action is like a personal injury case, but the proof necessary for a defamation action is very different.  As a nation, we put such a value on free speech that the burden is high to prove defamation.

Defamation is the inclusive term, including both slander and libel.  In other words libel and slander are both defamation, but libel is printed and slander is spoken.  Defamation occurs when someone makes a false, unprivileged statement about someone to a third party, which attacks the person’s professional character or standing, claims that an unmarried person is unchaste, claims the person has a sexually transmitted disease, or that the person has committed a crime of moral turpitude.  Stated another way, to constitute defamation the statement must falsely accuse the plaintiff of immoral, illegal or unethical conduct.  Generally, the statement must harm the reputation of the person, but in the case of per se defamation, damages will be presumed.  This last point is very important, because if a plaintiff had to prove actual damage, the burden of proof in most cases would be nearly impossible. 

Let’s examine each element more closely:

1.  False Statement of Fact

Truth is an absolute defense to a claim for defamation. No one can prevent you from telling the truth, even if that truth harms someone else. Further, the statement of an opinion generally will not constitute defamation, since it is not offered as a statement of fact. For example, it a food critic states that a restaurant serves horrible food, that is not defamation since taste will always be an opinion.  Even if the restaurant brought 100 witnesses to court to attest that the food is wonderful, the critic is still entitled to his opinion.

On the other hand, some believe that they can escape liability by casting a fact as an opinion.  A number of clients have come to us for a second opinion after another attorney has told them a statement is not defamatory because it was stated as an opinion.  Adding the word “opinion” to a defamatory statement does not automatically shield the speaker from liability.  The determining factor is whether the “opinion” is about a verifiable fact.  For example, as stated above, a food critic is protected when he offers his opinion about the food, but if he says, “in my opinion the food was horrible and the restaurant has rats,” the statement about rats is defamation (assuming it is false) because it is a verifiable fact.  Similarly, “In my opinion, he cheats on his taxes” is a defamatory statement since it is the assertion of a fact, even though it is called an opinion.

2.  Unprivileged

There are many statutes that afford a “privilege” to someone to speak, and in those cases the person is shielded from defamation.  (See Civil Code section 47.)

For example, say you are looking out your window one day, and you see someone break a window in the house across the street, and climb into the house through that broken window.  Thinking a burglary is occurring, you call the police who soon arrive and drag the suspect out of the house at gun point, only to discover that the person owns the house, and had been forced to break in when he locked himself out.  You’ve just made a false statement to a third party, claiming that your neighbor was breaking the law.  Can you be sued for defamation?

No, because there is a statutory privilege afforded to anyone making a good-faith report to the police.  There is also a very strong litigation privilege, protecting witnesses from anything they say in court or in commencement or furtherance of the action.  We often get calls from people wanting to sue a witness because “he lied on the stand” or submitted a false declaration.  But the court system would come to a grinding halt if witnesses could be sued for what they say, so the law shields them with a privilege (although a witness who testifies falsely can be criminally prosecuted for perjury).  Many clients have trouble with this concept, especially in the context of a custody suit, because the court will appoint an evaluator and of course the parent disagrees with everything contained in the report.  They want to sue the evaluator for the “lies” contained in the report.  Such actions are barred in almost every case because of the litigation privilege.  The solution is not to sue, but rather to introduce your own evidence to show that the evaluator is wrong.

One privilege that really surprises people is the right your former employer has to tell prospective employers what a bad employee you were.  An urban legend has appeared, stating that an employer is only allowed to confirm the employment of a former employee, without offering any opinion about job performance.  Quite to the contrary, California Civil Code section 47 provides that an employer may offer such an opinion and is immune from suit unless it can be shown that false information was given out of malice.

3.  Statement made to a third party

No statement, no matter how false and vile, can constitute defamation if it is made only to the person that is the basis of the statement.  Defamation arises from a loss of reputation.  How can you lose reputation if the statement is made only to you.  And if you repeat the slander or show someone the libelous statement, the speaker or publisher remains free from liability, because you are the one that “published” the statement.

4.   Immoral, illegal or unethical conduct

A statement is not defamatory just because it is false, even if it arguably casts the person in a bad light.  Your application to join the local bowling league is rejected, and you later find out that one of the people on the board stated you were a really bad bowler.  In fact, you are an outstanding bowler.  Nonetheless, it is not defamation since being a bad bowler is neither immoral, unethical or illegal.

5.  Harm to reputation

Finally, even if all the elements for defamation are met, the facts can sometimes present a difficult case to prove.  For example, assume that while at a party, a stranger approaches your spouse and falsely tells him or her that you are having an affair.  If your spouse laughs it off, then how has there been a loss of reputation?  The statement is defamatory, because it falsely accuses you of immoral conduct, but how were you damaged?  If, on the other hand, your spouse storms from the party, drives home and puts all your belongings in the front yard, then what was your reputation to begin with?  If your spouse was willing to believe such a statement from a stranger with no further investigation or collaboration, then he or she did not hold you in very high regard in the first place.  You apparently did not lose any reputation, because it was not there to start.  This is just one example of the nuances that arise in a defamation action.

What can I do?

Most attorneys think in terms of suing, and will want to run to court.  At Morris & Stone, we carefully examine your goals to determine the best plan for your specific situation.  We are ready and able to go to court if that is the best approach, but sometimes other approaches better fit your goal.  For example, in one case our client was defamed by a newspaper.  He walked around with a cloud over his head, knowing that many people had read and believed the horrible, false accusations printed about him in the paper.  Even if the paper printed a retraction, it would be a little paragraph buried on page 12 that no one would read.  Similarly, money damages would do nothing to restore his good reputation.

The solution?  We prepared and served a complaint to apply pressure, and then negotiated a settlement that was beyond anything our client could have hoped for.  In addition to paying our client damages, the paper agreed to provide four pages for our client’s use.  He was free to use one page at a time over several weeks, or use all four pages at once, to publish a retraction of the things that were said about him.  In other words, he was given a blank canvas to use however he wanted to clear his good name.

That was the perfect remedy for that client, and we will work to find the prefect solution for you.

Your reputation is priceless

Whether you respond with just a letter or go to a full blown lawsuit, you should never allow a defamatory statement to go unchallenged.  Silence is perceived as acceptance.  If you did nothing about what was being said about you, it must be true.  The goal in a defamation action can be to recover damages, but often that is not the primary goal.  The priceless value of a defamation action is to gain back your reputation.  When someone says to you, “but didn’t I hear or read somewhere that you [fill in the blank]?”, you can answer, “yes, someone was spreading that lie, but I sued him and he was found liable for defamation and had to pay me damages.”