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What Are Defamation, Libel and Slander?

Posted by attorney Vincent White

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.

Typically, the elements of a cause of action for defamation include:

  1. A false and defamatory statement concerning another;
  2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
  3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
  4. Damage to the plaintiff.

In the context of defamation law, a statement is "published" when it is made to the third party. That term does not mean that the statement has to be in print.

Damages are typically to the reputation of the plaintiff, but depending upon the laws of the jurisdiction it may be enough to establish mental anguish.

Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

  • Attacks on a person's professional character or standing;
  • Allegations that an unmarried person is unchaste;
  • Allegations that a person is infected with a sexually transmitted disease;
  • Allegations that the person has committed a crime of moral turpitude;

While actions for defamation have their roots in common law, most jurisdictions have now enacted statutes which modify the common law. They may change the elements of the cause of action, limit when an action may be filed, or modify the defenses to an action for defamation. Some may even require that the defendant be given an opportunity to apologize before the plaintiff can seek non-economic damages.

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