Defamation: Legal FAQ

What Are The Elements Of A Defamation Claim?

The party making a defamation claim (plaintiff) must ordinarily prove four elements:

1. a publication to one other than the person defamed;

2. a false statement of fact;

3. that is understood as

A. being of and concerning the plaintiff; and

B. tending to harm the reputation of plaintiff.

4. If the plaintiff is a public figure, he or she must also prove actual malice.

Are Insults, Critiques And Opinions Considered Defamatory?

Insults and epithets are not normally considered defamatory because they are generally seen as outbursts of emotion, with no real substance except to show intense dislike. A fair critique of a restaurant, movie, TV show, or theater play is also not considered defamatory. However, if the comments or criticism are disparaging enough, they may result in a loss of business or reputation.

Opinions are also not normally considered defamatory because opinions usually don’t contain specific facts that can be proven untrue. Merely labeling a statement as your “opinion” does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it’s likely to be seen as a true, even if controversial, opinion (“I really hate George Lucas’ new movie”) rather than an assertion of fact dressed up as an opinion (“It’s my opinion that Trinity is the hacker who broke into the IRS database”).

Can I Be Sued For Defamation Of Character If I Am Writing A Book Based On A True Story?

If you place a “disclaimer” at the beginning that the people and events have been changed to protect the innocent, and that any similarities to actual persons, either living or dead, are merely coincidental, it is not considered defamation of character and you can’t be sued. You have the First Amendment, which gives you freedom of speech.

May Someone Other Than The Person Who Originally Made The Defamatory Statement Be Legally Liable In Defamation?

One who “publishes” a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.