5 Elements Of Defamation (2024)

The first crucial element of defamation that you must prove is that a false statement was made by the defendant and presented as fact.

True statements are not defamatory, nor are statements that are clearly opinion, parody or satire. For example, if a statement is made that is untrue but clearly not meant to be believed by the audience, it cannot be the basis for a defamation claim.

Communication of the false statement is one of the most crucial elements of defamation. If a false statement was made but there was no one to hear it, then it wouldn’t cause any harm and would not be defamation.

Statements can be communicated to a third party orally or in written form.

• If the defamation occurs in written form, then it is called libel.
• If it occurs in oral form, then it is called slander.

This distinction is not always clear cut in the digital age, but an experienced defamation lawyer can help you to determine if you were the victim of slander or libel so you can make the right kind of defamation claim.

You also have to demonstrate that the defendant who defamed you failed to fulfill their obligations in determining if the statement was true or not.

There are different standards used to establish a defendant’s obligation depending on if you are a public figure or a private figure.

Private Figures and the Negligence Standard

If you are classified as a private figure rather than a public figure, you only need to show the defendant in your defamation claim was negligent or careless in determining whether or not the false statement was true.

If a reasonably prudent person or entity would have been more careful in ascertaining the truth of the statement, then you have satisfied this element of your defamation case.

You can demonstrate that a defendant was negligent by showing evidence related to:

• The level of care the defendant took in fact-checking
• The amount of research the defendant did prior to publication
• Whether the defendant made any attempt to verify published information

If the defendant did not follow basic journalistic best practices or otherwise did not exercise a reasonable degree of care, this element of your defamation claim is satisfied.

Public Figures and Absolute Malice

If you are a public figure, a different standard is used, called the actual malice standard. When this standard applies you can successfully make a defamation claim only if one of the following is true:

• The defendant published a false statement of fact with the knowledge that it was false
• The defendant acted with reckless disregard for determining whether the statement was false or not. This is beyond mere negligence—the defendant must have entertained, or had reason to entertain, serious doubts about whether the statement was true or not.

This standard applies to:

• Public officials such as those who have positions of authority in the government or who previously held positions of authority even if they have left office.
• All-purpose public figures, including those who have achieved widespread notoriety due to the level of their fame.

There are also limited-purpose public figures. These are individuals who have become well-known in a specific limited field or area, or who have voluntarily chosen to become a key figure or public figure involved in a particular controversy or situation.

For limited-purpose public figures, the actual malice standard generally applies only when it relates to the subject matter or controversy that the limited-purpose public figure has become well-known for or involved in.

The actual malice standard is much more difficult to meet, which is why public figures can have a harder time successfully making a defamation claim.

Some types of communication are considered to be “privileged” or entitled to special protections under the law. If a defamatory statement is privileged, then a plaintiff will not be able to make a defamation case based on it.

Some statements are absolutely privileged, so they can never be grounds for a defamation lawsuit. Examples include testimony presented in court proceedings and statements made by government officials when the legislature is in session. These statements are privileged because it is in the public interest to provide strong protection for speech in these situations.

Qualified privilege also applies to some statements. Qualified privilege applies when there is strong public interest in the subject matter so free communication on the issue is critical. Examples may include arrest and employment records.

A defendant can raise privilege as a defense when a plaintiff has successfully proved other elements of defamation.

Finally,you must demonstrate that the statement caused you to experience actual damage. This can involve showing that it caused them reputational harm, lost future opportunities or severe distress necessitating medical treatment.

There are some statements which are classified as defamation per se because they are presumed to cause harm. This means, by definition, they are defamatory. This can include:

• False criminal accusations
• Claims about an infectious disease
• Sexual misconduct allegations
• Allegations of unprofessional behavior
• Adultery allegations

When a statement falls into one of these categories, it isn’t necessary to specifically demonstrate the statement was harmful—but you will still want to have evidence to show just how badly you were damaged so you can maximize the compensation available to you. An experienced defamation lawyer can help with this process.