What is defamation?

Defamation refers to the publication or speaking of a false statement of fact about another person that harms that person's reputation. Defamation seeks to compensate an individual for reputational harm. Defamation is sometimes referred to as libel or slander. The general rule is that libel constitutes written defamation, while slander constitutes oral defamation. For example, if person A yells to a crowd that person B a "sex offender," that would be slander. If newspaper A writes that person B is a "sex offender," that would be libel.

Telling a lie about someone is one element of a defamation claim (iStock).

Telling a lie about someone is one element of a defamation claim (iStock).

What are the required elements of a defamation claim?

The necessary elements of a defamation claim are identification, publication, defamatory meaning, falsity, a statement of fact, and damages. Identification means that the plaintiff must show that the publication was about or "of and concerning" the plaintiff. Most of the time this is an easy requirement for defamation plaintiffs. If a publication says that "David Hudson, the author of The Handy Law Answer Book, is a sex offender," the identification requirement has been met easily.

However, what if a work of fiction contains several identifying characteristics similar to a real person? The real person may file a defamation action, claiming that many people would reasonably understand the fictional character to be based on him. Believe it or not, many defamation suits have been filed against publishers of works of fiction.

Publication means that the defamatory information has been conveyed to two or more people. This element is usually easily satisfied.

The language in question must be capable of having a defamatory meaning. Some language that you think may be fine may actually be defamatory. One publication found this out when it included a review of an attorney that called that attorney "an ambulance chaser." A reviewing federal court determined that the term "ambulance chaser" was defamatory, because ambulance chasing involved direct solicitation of clients in violation of attorney professional rules of conduct. In essence, by calling an attorney "an ambulance chaser," the publication said that the attorney violated rules of professional conduct.

Falsity is another requirement, as truth is a defense to a defamation action. If person A says that person B "is a sex offender," B cannot recover if he really is a sex offender. The final requirement is damages. A person generally has to show that the defamatory statements caused them some type of harm.

What if an editorial writer uses strong language to describe a person?

This is a difficult question to answer, as editorial writers have more leeway in using figurative language than, say, a reporter writing a straight news story. If an editorial writer describes a very tough school board member as a "Nazi" and it is clear from the story that the writer uses the term to describe their arbitrary and tough personality rather than actual membership in the Nazi party, the writer may have a defense to a defamation claim.

LegalSpeak: Libel Proof Plaintiff Case— Davis v. The Tennessean (Tenn.App. 2001)

This case involved a plaintiff who was convicted of murder and sentenced to 99 years in prison for his participation in an armed robbery. However, the plaintiff was not the triggerman in the armed robbery. A prominent newspaper inaccurately printed that the plaintiff was the triggerman. The man then sued the newspaper for libel. The Court explained:

However, "the basis for an action for defamation, whether it be slander or libel, is that the defamation has resulted in an injury to the person's character and reputation." To be actionable, the allegedly defamatory statement must "constitute a serious threat to the plaintiff's reputation." Damages from false or inaccurate statements cannot be presumed; actual damage must be sustained and proved.

It is from these general principles establishing that the gravamen of a libel claim is injury to reputation that the concept of "libel proof" parties has arisen. This doctrine essentially holds that "a notorious person is without a'good name' and therefore may not recover for injury to it." Robert D. Sack, Sack on Defamation: Libel, Slander and Related Problems, 35 (Cum.Supp.1998).

If the purpose of defamation law is to guard against harm to reputation, a person without reputation has nothing for the law of defamation to protect. Whether for this reason, or because courts wish to rid their dockets of and spare defendants from nuisance suits by people with nothing legitimate to gain from such litigation, some courts have held that there are persons so notorious that they have no reputation on which to base a defamation claim. Their suits are necessarily frivolous. They are said to be "libel-proof."...

Although Mr. Davis alleges he suffered unjustified humiliation because of the publication, he does not allege his public reputation has been injured. We conclude he cannot show such injury because, at the time of the publication, he was serving a ninety-nine year sentence for aiding and abetting the murder which is the subject of the article and his complaint. He participated in the crime which resulted in the murder. His character reputation with the public was established and could not be harmed by inaccurate attribution to him of conduct which was part of the crime in which he participated. His continued incarceration for a long time after the publication renders actual damage, with regard to his standing in the community, as a result of the article unlikely.

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