slander, defamation & libel
Generally speaking, defamation is an attack on one’s character or reputation. People frequently wonder if rumors, gossip, exaggerations, or even falsehoods constitute defamation.
Defamation claims can arise in two forms: libel (written) and slander (spoken). Defamation can result from a variety of different scenarios, such as: statements made to others during a workplace investigation, explaining to colleagues the reasons why an employee was terminated, the employee’s claim that the reason for his termination was false, or in connection with job references. This Friday’s Five helps employers understand what can constitute a claim for defamation, and potential defenses.
1. Two Types Of Defamation: Libel And Slander
In order to prove a libel or slander claim, the plaintiff must prove: (a) false communication; (b) unprivileged statement of fact (not opinion); (c) it was made about the plaintiff; (d) published to a third party; and (e) caused damage to the plaintiff.
For libel, which is written, the communication must expose plaintiff to “to hatred, contempt, ridicule, or obloquy, or which causes him/her to be shunned or avoided, or which has a tendency to injure him.her in his/her occupation.” See Cal. Civil Code section 45.
Defenses to Defamation Claims
- Truth. If the person who made the alleged defamatory statement was telling the truth, it is an absolute defense to an action for defamation. For example, if a rumor being spread around about a person is actually true, passing along this rumor is not defamation.
- Privilege. Another defense to a defamation claim is allowed when statements are made in court, by legislators on the floor of the legislature, or by judges sitting on a trial, no matter how false or outrageous.
- Opinion. If statement is an opinion as opposed to a fact, there is no defamation. This distinction often depends upon the context of the statement being made, who made it and whether the community would perceive that person to be in a position to know it as fact. For example, a statement by your spouse or family member that you engaged in an act is far less likely to be considered opinion than a person’s statement who just met you.
- Fair Comment. Similar to opinion, if a fair comment on a matter of public interest is made, then the person making the statement is not likely to be liable for defamation. For example, citizens discussing the allegations surrounding a local political scandal are likely exercising a free comment on the public situation.
- Consent. On a rare occasion, a person may argue as a defense that the defamed person actually consented, or agreed to, the dissemination of the allegedly defamatory statement.