Defamation Law FAQ
According to Black’s Law Dictionary (via lawdictionary.org), defamation is:
The taking from one’s reputation. The offense of injuring a person’s character, fame, or reputation by false and malicious statements. The term seems to be comprehensive of both libel and slander. Printing Co. v. Moulden, 15 Tex. Civ. App. 574,41 S. W. 381; Moore v. Francis, 121 N. Y. 199, 23 N. E. 1127, 8 L. R. A. 214, 18 Am. St.Rep. 810; Hollenbeck v. Hall, 103 Iowa, 214, 72 N. W. 518, 39 L. R. A. 734, 04 Am. St.Rep. 175; Mouat v. Snyder, 105 Iowa, 500, 75 N. W. 350.
What is the difference between slander and libel?
Slander and libel are the two main categories of defamation. Slander is spoken – or transitory – defamation; libel is written – or graphic – defamation. When a false, harmful and negligently spoken statement is made via a speech, broadcast or online video, it is slander. If a statement is made in print – online or off – or implied via a graphic, photograph or piece of non-verbal art, it’s libel.
At the very least, what must you prove to win a defamation lawsuit in a U.S. court?
The United States defamation laws are the most defendant-friendly in the world. What does that mean, practically speaking? Well, to put it bluntly: winning a stateside slander or libel lawsuit is hard. Like, Dark Souls difficult. Each state has its own defamation laws – some more unique than others – but generally, to win a defamation claim, plaintiffs must prove that their defendants:
1) Made a false, unprivileged statement of fact (about the defendant), which caused reputational or material harm; and
2) Acted either negligently, with actual malice or reckless disregard for the truth (depending on the presiding court and the plaintiff’s public notoriety).
Here’s the bottom line: in the United States, it’s not against civil or criminal standards to trash-talk a person, business, government, religion or …well…anything. If *Joe* says you’re “stupid,” you can’t sue him for slander because you have a 140 IQ. If *Sue* posts on Facebook that you’re “mean,” you can’t sue her for online libel because you’re a volunteer.
The only way to win a defamation lawsuit in the U.S. is if you, the plaintiff, can prove that the defendant purposefully lied in an effort to crush your reputation or bank account. To read more about U.S. defamation law., click here.
Can I sue for defamation over accusations of infidelity?
People ask: “Can I sue so-and-so for saying that I cheated on my husband / wife?”
The answer? It depends.
If you Ashley Madisoned your way into some *strange*, and the accuser can prove it – you may be out of luck, bub. But, depending on the details, evidence and jurisdiction, there’s a possibility that you could use another tort, like “publication of private facts” or “false light.” Talk to a lawyer. He or she will point you in the most effective direction.
Are there different defamation rules for “public” and “private” people in a U.S. court?
Defamation is not an equal opportunity tort. Believe it or not, “famous” folks must prove more than us “normal” folks to win a slander or libel case. #richpeopleproblems
At first consideration, it may seem unfair. [“Save Brangelinas’ Defamation Rights!”] But the rules are a gigantic part of free speech protection. After all, if we didn’t differentiate between public and private people, politicians could theoretically “gag order” their way through life, silencing critics with the drop of a lawsuit – which is exactly what happened in the 1950s and 1960s.
But in 1964, the Supreme Court of the United States rectified the situation. Justices decided that if “public figures” wanted to sue for slander or libel, they had to prove actual malice. “Private citizens,” on the other hand, only had to prove negligence or reckless disregard for the truth (depending on jurisdiction). (Case: New York Times v. Sullivan)
What is “actual malice”? Well, it’s a bit complicated. In simple terms, it means “purposefully lying with the intention of causing harm.” But that’s a crude – albeit serviceable – definition. To read more about the finer points of actual malice, head here. [link]
Medical doctors and dentists get hammered on consumer review websites. Unhappy patients can be vicious on their critiques. And one negative online review can decimate – or even ruin – a practice.
So, what should doctors and dentists do in the face of a terrible online review? First, talk to the patient; be smooth; coax them into removing the post. Don’t threaten to “sick your lawyers on them” or be insulting. Instead, calmly address the problem. Be honest. Be gentle. Be kind. It works – often.
If the unhappy patient isn’t moved after a pleasant tet-a-tet, what’s the next option? An online defamation lawsuit. But be forewarned: consumer review lawsuits are not easily winnable. As previously mentioned, it takes more than a mere inaccuracy to be crowned the winner in a libel bout. The burden of proof is squarely on the plaintiff.
So, if you’re a doctor or dentist looking to file and online defamation lawsuit against a disgruntled patient who’s posted a scathing review, a word of advice: don’t do it unless the statement is a bold-faced lie – and you can prove it.
Do you want to find out if you have a viable case? Talk to some defamation lawyers. They can weigh the facts and advise on the best course of action.
People are talking trash about me on social media, what are my legal options? Do I have any?
Are people lying about you on social media or are they just sharing negative opinions? If it’s the former, you may have grounds for a defamation claim; if it’s the latter, you may have to ignore them.
Moreover, if a detractor tells the truth – and he or she can prove it –winning a defamation claim will be tough.
All that said, depending on jurisdiction, there may be other available statutes to clear a reputation smear.
Can U.S. citizens file slander and libel lawsuits in foreign courts that are more plaintiff-friendly?
Yes, but it’s often a difficult slog, with no guarantee of success. The practice of “shopping” for a plaintiff-friendly defamation jurisdiction – typically overseas – is called “libel tourism.” People have been doing it for decades.
How’d it usually work?
U.S. citizens looking to work around America’s decidedly defendant-friendly defamation laws would tenuously claim “publication” in the United Kingdom, and then file their libel and slander lawsuits under the Crown’s decidedly plaintiff-friendly defamation laws.
The practice became popular – so popular it caused a legal logjam. In an attempt to lighten the court system’s load, in 2013, U.K. lawmakers revamped the nation’s defamation laws. Did it work? Mildly. But non-U.K. citizens are still figuring out ways to use U.K. courts for slander and libel suits.
Do U.S. citizens have to honor defamation rulings from courts outside of the U.S.?
In 2010, POTUS signed the SPEECH ACT into law.
The Goal: Protect U.S. citizens’ First Amendment rights in an ever-increasing digital economy where borders are becoming more fluid.
How: The law exempts American citizens from fulfilling monetary obligations, which are derived from slander or libel rulings, in jurisdictions without comparable defamation standards.
Example: Let’s say a Canadian sues you, an American, for online defamation. The Canadian files suit in a Canadian court. Long story short, he wins and you’re ordered to pay the plaintiff $100,000 in damages. But Canadian slander and libel laws are vastly different than U.S. ones. So, the SPEECH Act would kick in. The defendant – a U.S. citizen, living stateside, found liable for defamation by a Canadian court – would not be forced to pay the damages, nor would a U.S. court help Canada collect. If, however, the defendant decided to take a trip to Canada, all bets are off. The SPEECH Act only protects U.S. citizens within borders.
Defamation cases are complex – and a minor detail can make all the difference.
It’s exceptionally rare for pro se (self-representing) plaintiffs to win defamation claims. Your odds of hitting the lottery are better. Besides: would you trust a librarian to perform an appendectomy? The same logic applies.
If you want to annihilate a bad review, get in touch. We’re lawyers who can help get you erase the bad press. The solution may be a lot less painful – and expensive – than you think.