What Is Defamation, and How Do You Prove It in Court?

By: John Donovan  | 
Libel and slander
Libel and slander are types of defamation. Both have different legal standards for proving in a court of law. BergmanGroup/Getty Images

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. Take the defamation cases surround conspiracy theorist Alex Jones, for instance. Jones was just slapped with one of the largest compensatory damages ever for defamation in a Connecticut case related to the Sandy Hook Elementary School shooting in 2012 (more on that in a minute).

"Defamation," says the Legal Information Institute at the Cornell Law School, "is a statement that injures a third party's reputation."

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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.

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How Defamation Works

A few steps, according to FindLaw, on the legal road to being defamed:

  1. Someone makes a statement.
  2. The statement is "published."
  3. The statement causes injury.
  4. The statement is false.
  5. 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.

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"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."

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Sandy Hook and Alex Jones: A Clear Case of Defamation

Alex Jones
InfoWars founder Alex Jones speaks to the media outside Waterbury Superior Court during his defamation trial in Connecticut. Jones testified just once and refused to turn over financial or analytics data requested by the plaintiffs. Joe Buglewicz/Getty Images

In December 2012, a 20-year-old man killed six adults and 20 children in a mass shooting at Sandy Hook Elementary School in Newtown, Connecticut. The incident shook the conscience of the nation, not only for its viciousness, but also because so many of the victims were first-grade children.

Things got even worse when, just hours after the shooting, conspiracy theorist Alex Jones began telling viewers of his show "InfoWars," the entire thing was staged as a reason for the U.S. government to take away guns from citizens. Jones also said that grieving parents were crisis actors. He continued to make these claims for years on his show.

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One parent, Robbie Parker, whose 6-year-old daughter Emilie Parker was killed, became a particular target of Jones. Parker was the first parent to speak about the tragedy. Parker talked about his daughter during a news conference after the shooting, and just before stepping to the microphone to speak, he smiled nervously before he gathered himself to talk. Jones broadcast Parker smiling repeatedly, suggesting it was more evidence that Sandy Hook was a hoax.

Jones' followers fixated on Parker and began a relentless campaign of harassment against him and the Sandy Hook families. Then the family members sued Jones and his media company, Free Speech Systems, for defamation. Three separate cases were filed, and all three, Jones was liable by default, because Jones refused to comply with the discovery process and never turned over financial or analytics data requested by the plaintiffs.

Jurors in the Connecticut trial, which found Jones liable in 2021, ordered him to pay several families and a responding FBI agent $965 million in damages Oct. 12, 2022. This came after a Texas court awarded nearly $50 million to the parents of another Sandy Hook child in August.

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Different Standards of Proof

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.

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"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:

  1. Public figures such as singers, dancers, actors and politicians, seek out public attention and thus must take the good attention with the bad.
  2. Courts 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.

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Originally Published: Feb 2, 2021

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