BASIC ELEMENTS OF DEFAMATORY STATEMENT

Defamation is the act of injuring a person’s reputation.

CHAMAN LAW FIRM

6/15/2022 8 min read

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BASIC ELEMENTS OF DEFAMATORY STATEMENT

Defamation is the act of injuring a person’s reputation. Libel occurs when defamatory remarks are written; slander occurs when the words are spoken. Defamation can be broadly characterized in any format as long as the goal of the person making the defamatory statement is to influence the reputation of the person against whom the statement (that affects a person's reputation) is made. Defamation can have a negative impact on a person's mental, physical, and financial health. Sometimes the statement may prime facie be innocent but may be done with malicious intent. Such statements are referred to as Innuendo.

ESSENTIAL ELEMENTS OF DEFAMATION

1. The Statement should be made A statement can be made by words either spoken or intended to be read, or by signs or by visible representations. For instance, A is asked who stole B's money A points to C, aiming to make everybody believe that C stole the money.. This is defamation.

2. The Statement must be defamatory Defamation begins when somebody makes a false and unsightly statement, and one who makes a defamatory statement can be held liable for defamation. A defamatory statement is probably going to diminish the good belief that others hold about the person and it has the propensity to make the society or other persons to look at him with a feeling of ridicule, hatred, fear or dislike. Abusive language can also be defamatory, for example, to call a person a hypocrite or a habitual drunkard. A few illustrations to grasp what is defamatory statement and what is not a defamatory statement. To say a motorist drives negligently is a defamatory statement. To criticize goods is not a defamation. To mention that a baker’s cake is often distasteful is defamatory.

3. Defamation is a Falsity Fact, Not Opinion The most important aspect of a potentially defamatory statement is that it purports to be a statement of fact. Opinions do not seem to be defamatory. People have the freedom to express whatever opinions they like about other people.

“I think that Sam could be a bully,” is an opinion. It’s not a polite opinion, but it is still an opinion. But “Sam stole from his employer” is a statement of fact. If that statement isn’t true, it is defamatory. That is a false statement that clearly can harm Sam’s reputation and could get cost him his job.

However, in an exceedingly case between these two types of statement, where someone says, “I think that Sam stole from his employer”. Qualifying a fact by saying “I think,” does not always turn a statement of fact into an opinion. “I think that Sam could be a bully” is a vague statement of opinion. But “I think that Sam stole money from his employer” implies that Sam may very well have stolen some money. The actual fact that you said it implies that you might imagine that he did and that you wish for others to understand that he might have stolen some money.

The bottom line —depending on who you say it to and the way you say it, implying that somebody did something bad by phrasing it as an opinion will be defamatory. It’s probably best to avoid saying these types of “gray area” things if you think that there is the slightest chance that the statement could get around.

1. The Statement should be false

The truth is a defense to defamation so a defamatory statement should be false. Defamation occurs when a false claim about someone is created. The non authenticity of the statement is an important element of defamation so if the statement made is true then there is no defamation. The law does not punish any person for speaking the reality, whether or not it is unpleasant.

In order for a statement to constitute defamation, it must be both false and provable. Making the statement that your boss cheated on his wife is not defamatory if he did, in fact, cheat on his wife; the statement is true, irrespective of whether it is uncomfortable or unprofessional.

However, if the information can be proven false, this suggests that one person is sharing half truths about another person whose life is being negatively impacted by the misinformation. However, it is important to note that a statement may be taken to mean something false and defamatory, even if it is not what was expressly stated. Defamation considers not only the precise words used but also the implied meaning.

The element of proving that a statement is fake is one among the most challenging aspects of the legal process of a defamation case. Whether or not a statement is damaging to a person’s reputation and causes them loss or harm, if it is true, it does not qualify as defamation. Similarly, if someone being interviewed provided incorrect or false information that was later published, their consent to that interview releases the interviewer and publisher from claims of defamation, whether or not the data that is shared leads to negative consequences.

1. The Statement Must Have Been Made to a 3rd Party

In order for a statement to be defamatory, it must have been made to a 3rd party. Someone can’t be defamed by a statement said or written only to him or herself.

1. The 3rd party believes the defamatory matter to be true

The other people of the society to whom the statement has been said believe that the defamatory statement to be true about the plaintiff.

1. The Statement must refer to the plaintiff

The defamatory statement must refer to the person. The reference may be implied or expressed. It is not important that the plaintiff’s name needs to be mentioned if he can still be inferred. The person stated within the defamatory statement may be living or deceased, however, the defamation suit on behalf of a deceased person can be filed only if the person filing the defamation suit has an interest. The one being defamed, that is the plaintiff, must be identifiable from the statement such that it can only apply to that person. A statement that “all celebrities have probably cheated on their partners” is not libel or slander because it does not identify one individual person whose reputation may be injured.

The identified person may be addressed directly, like by name, or indirectly, such as by a role in an organization. If there is only 1 CEO of a corporation and an individual makes a slanderous claim about the CEO of that corporation without mentioning a name, the target of the statement is still made clear.

As long as the person being identified is easily understood to be a specific person, the claim of defamation may continue, even if that person’s name was not directly stated. While cases in which a name is explicitly mentioned are often among the most simple, cases without express names are often still eligible to proceed to legal action.

1. The Defendant Is At Fault

In order for a statement to legally qualify as defamation, the person accused of defamation must actually be at fault. There are some scenarios in which a defamatory statement is not the fault of the person who originally spoke or wrote it. For example, an individual who offers a television interview who is later misquoted may not be liable for defamation.

While their original words were the basis on which the defamatory information was shared, their original words themselves were not defamatory; instead, it was the misquoted statement that defamed the individual, and so the original speaker or writer is not liable for defamation based on how their words were used.

Similarly, some types of utterances or sharing are protected from claims of defamation. For example, a witness in a courtroom cannot be sued for defamation when they are speaking as a witness in a case. This is to ensure that the accuracy and truthfulness of their testimony can be preserved without fearing that they may not fully divulge information for fear of legal retaliation.

Employers are also often protected from defamation when speaking with other employers; this becomes relevant for workers whose employers do not give them a favorable reference, causing them to lose a work opportunity when the employee attempts to switch jobs.

2. Private Figures vs. Public Figures – Negligence vs. Intent

Simply because a person makes a defamatory statement does not automatically mean that the person will be liable for defamation. The person creating the statement had to have acted inappropriately in some way. The standard of conduct required to hold a person liable for defamation depends on who was defamed.

If the person defamed was a private person, in most states, the person creating the defamatory statement may only be held liable for defamation if he/she:

  • Knew that the statement was false and defamatory, or

  • Acted with reckless disregard of the truth or falsity of the statement in making the statement, or

  • Acted negligently in failing to ascertain whether the statement was true or false before making it.

To act in reckless disregard of the truth or falsity of a statement means that the person making the statement had serious doubts as to the truth of the statement, but they went ahead and made it anyway. If the person defamed was a public figure, the person making the defamatory statement can only be held liable for defamation if he/she knew that the statement was false or if he/she acted with reckless disregard as to the truth or falsity of the statement.

You can see that, ultimately, the difference between defamation of a public figure versus defamation of a private person is that a private person who claims defamation only needs to prove that the defamer acted negligently, while a public figure who claims defamation has to prove that the defamer acted intentionally or recklessly.

A good example of the difference between defaming a public figure versus a private individual is writing about that person in a blog post. If you claim that some private person was convicted of assault and battery twenty years ago, that person is probably going to win a libel case against you. But if you write that your senator was convicted of assault and battery twenty years ago, even if the senator is innocent, he/she would have to prove that you intentionally or recklessly lied. As long as you have some sort of defense – like you saw that information on a semi-reputable web site, for example – you have a reasonable chance of defending yourself against a libel claim from a public figure.

1. The intention of the wrongdoer

The person creating the defamatory statement understands that the third party listening to the statement will believe the statement to be true and it will result in causing harm to the reputation of the person and the person can be defamed.

2. The Statement should not be privileged

In some situations, the statements may be privileged i.e. the person who has created the statement is secure from such liability.

3. The Statement must be published

For a statement to be considered defamation, it must be published. While a person may write something harmful or false about someone in a private location such as a journal or dairy or in a personal message, this document is not intended to be shared with the public, and therefore can not be considered defamatory. “Published” can mean any type of publicly accessible medium; libel may be printed in a magazine, and slander could be found in a television interview.

The meaning of publication will vary depending on the type of defamation that occurred. What is most important to prove is that the words reached the public in a manner that was accessible and shared. The statement should be communicated to a third party. In the case of sending a personal message, it is considered defamation, if the sender knows that it is possible that a third person can read.

4. The Statement must cause injury

The statement created by someone should harm or injure the plaintiff in one or the other way.

Conclusion

The law of defamation serves the purpose of protecting people from having their reputation harmed from false statements made against them by anyone. However, in the light of the right to freedom of speech and expression, people are allowed to make true statements and give their opinions as well. This area of law seeks to protect an individual’s reputation from being injured by preventing unfair speech. It is therefore as seen from the aforementioned, very easy to make a Defamatory Statement. One has to speak very carefully to avoid the brunt of the law.

NB: This article is not a legal advice, and under no circumstance should you take it as such. All information provided are for general purpose only. For information, please contact chamanlawfirm@gmail.com

WRITTEN BY CHAMAN LAW FIRM TEAM

EMAIL: chamanlawfirm@gmail.com

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