Defamation is Broadly Defined

POSTED ON October 17, 2017 / IN Documentary Toolkit


Neil J. Rosini

Libel is written defamation.  Slander is oral defamation.  Defamatory statements made in broadcasts usually qualify as libel because, like writings, they have broader and longer exposure than the fleeting spoken word.  What is defamation?

(1)  It is a statement of fact.

(2)  It has a tendency to injure reputation or diminish the esteem, respect, good will or confidence in which the subject is held by at least a substantial and respectable minority.

(3)  It is made about a living person, corporate entity, or other business unit.

(4)  It is “of and concerning” someone ‑‑ that is, the subject must be identifiable to a legally significant group even if not explicitly named.

The first requirement, that a defamatory statement be one of “fact,” leaves out statements no one takes seriously or that cannot be proven true or false.  Name‑calling, humor and hyperbole, which are not to be taken literally, as well as pure opinion, are not defamatory.  Where fact leaves off and this safety zone begins, however, is not always apparent.

The second criterion, respecting injury to reputation and the like, is broad enough to embrace a wide spectrum of statements.  Moreover, the standard of what injures reputation, diminishes esteem, respect, good will or confidence, is a moving target to some extent: it can vary from one place to another, from one community to another, and from one year to the next.

The reputations of the dead are not legally protected; a defamatory statement must concern a living person or, in some instances, a corporation or other business entity.  Moreover, if the subject of the defamatory statement has offered it for publication, or otherwise consents to its use, there can be no sustainable lawsuit; consent is a complete defense.

As the fourth criterion indicates, a person can be defamed even if not specifically named.  Inadequate disguises and references to groups of people without even naming individuals can result in as much trouble as naming names.

Note that truth or falsity of the statement does not bear on the definition.  (But at least when matters of public concern are involved, truth is an absolute defense.)  Whether or not the subject is a public or private person also has nothing to do with the definition of defamation.  Also notice that the definition makes no mention of whether or not the defendant is the source of the defamatory statement or simply quoting someone else.  The general rule is that a repeated statement is “adopted” through repetition, as if the party quoting another had originated the statement.  And there’s nothing in the definition about knowledge or intent; a person can be defamed unintentionally.

Adapted from The Practical Guide to Libel Law, by Neil J. Rosini

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