On its face, the legal concept of defamation is not a particularly difficult one to grasp. If you say something — or publish something — that damages another's reputation, you've done it.
"Defamation," says the Legal Information Institute at the Cornell Law School, "is a statement that injures a third party's reputation."
As with anything surrounding the law, though, that seemingly straightforward idea can get complicated pretty quickly. Libel, slander, actual malice, truth, who or what constitutes a "public figure" all impact whether defamation, in the eyes of Lady Justice, actually has taken place. (Those questions also are why the world is up to its French collars in attorneys. We need them just to straighten these things out.)
Still, remembering what has to happen first for defamation to take place always helps: Somebody's got to get hurt.
How Defamation Works
A few steps, according to FindLaw, on the legal road to being defamed:
- Someone makes a statement.
- The statement is "published."
- The statement causes injury.
- The statement is false.
- And the statement does not fall into a privileged category.
A statement can be made either orally (which is called slander) or written (which is called libel, often used interchangeably with the word defamation). In the old days — before "publishing" became as easy as pushing out a tweet — slander was not considered quite as serious as libel. Saying something potentially defamatory in a debate on the town hall steps just didn't reach as many ears or eyes as the written word.
"These days, there really is not much difference because almost all communication is really mass," says Greg Lisby, a licensed attorney in the state of Georgia and a professor of communication at Georgia State University in Atlanta.
The damage, the injury, the hurt caused by an allegedly defamatory statement can come in a lot of forms, but it's generally recognized as a hit to someone's (or some entity's) reputation. That often can bleed into all sorts of other types of damage, including to an individual's livelihood or a corporation's ability to do business. Enter the lawyers.
(A note on No. 5 above: Some statements are privileged and not liable to defamation charges. In a courtroom, for example, testifying in a trial is privileged speech.)
At the heart of defamation cases — at the heart of the law as a whole, really — is getting at the truth. If that supposedly defamatory published statement that has caused an injury is, in fact, true, all bets are off. True statements can't be considered defamatory.
"Truth is always a defense. Maybe not a perfect defense," Lisby says. "But truth will overwhelmingly get you where you want to be."
An Example: Claiming Defamation
During the overheated presidential election of 2020, Dominion Voting Systems, an election technology firm with customers in 28 states and Puerto Rico, was the target of some potentially defamatory statements from supporters and the legal team of then-President Donald Trump. Dominion, the president's backers said, was a major force behind fraudulent voting that threw the election to President Joe Biden.
In January 2021, Dominion sued Rudolph W. Giuliani, one of Trump's lawyers, for $1.3 billion in damages. In the suit, under a detailed section entitled "Factual Allegations," Dominion's lawyers laid out their case against Giuliani, who railed against Dominion in television interviews and while selling products on his podcast. The section of the suit was subtitled:
A Claim He Was Not Willing to Make in Court Because He Knew It Was False
A jury, if the case gets that far, will determine whether the many statements Giuliani made regarding Dominion are true or not. For its part, Dominion offers rebuttals to his charges and others on the company website, and claims that those falsehoods from Giuiliani (and others) have damaged more than reputations.
"As a result of the defamatory falsehoods ...," the suit states, "Dominion's founder and employees have been harassed and have received death threats, and Dominion has suffered unprecedented and irreparable harm."
"The question the court is going to be asking is: Has their reputation been harmed, as a company? Is it possible, is it likely, that people will not buy their voting machines based on the fact that 'the algorithm has been tampered with,' or 'certain number of votes can be changed easily and secretly?' The answer is, yeah, I think they could win. I don't see a problem there," says Lisby.
Getting to the truth of an allegedly defamatory statement is a step toward legal relief, but it's not everything. The law lays out two different standards of proof depending upon who is claiming to have been libeled.
A regular Joe charging defamation has only to show negligence on the part of the person who made the statement. On the other hands, a "public figure" — that is to say a politician, an actor, a government official, a sports star — claiming to be defamed must meet a different, higher standard, something known as actual malice, or a reckless disregard for the truth. It's much harder to prove actual malice.
"Actual malice means knowing falsehood. Did the person know the statements were false?" says Lisby. "Negligence means, basically, Did the person act in such a way where they ignored whether the statements were false or not?"
The courts make it more difficult on a public figure for two reasons, according to Nationwide Consumer Rights attorneys:
- [P]ublic figures such as singers, dancers, actors and politicians, seek out public attention and thus must take the good attention with the bad.
- [C]ourts recognize that public figures generally have much greater access to the media than average citizens and can use their access to the media to rebut any defamatory statements without assistance from the courts.
The courts will make the call on whether the person or entity bringing the suit is a public figure so as to determine which standard of proof must be met. Whatever the case, proving libel — not to mention recovering actual, presumed or punitive damages — can be a long, arduous and costly endeavor. Attaining justice often is.