Defamation is a complex area of law because it aims to balance two fundamental rights: the right to protect an individual’s reputation against false statements and the right of free speech. Understanding the intricacies of defamation is critical in an age where information can spread rapidly, and many people are more willing to make bold, sometimes false statements while hiding behind the anonymity of the internet. It can be easy to confuse a statement of opinion or criticism with harmful falsehoods; it is important to understand the criteria that must be met for a statement to be proven defamatory.
For a statement to be defamatory it must be proven false. Statements of opinion cannot be proven false, and therefore are not defamatory. To prove falsity, a plaintiff must show that the statement is objectively false. For instance, if someone falsely accuses a business owner of embezzling funds, the plaintiff can demonstrate falsity by providing evidence that the financial records are clean, making the accusation baseless.
To be published, the false statement must be communicated to at least one person other than the one being defamed. This can occur through almost any medium, whether word of mouth, written articles, published online or in a magazine, or any other public forum. If the defendant has made the statement available for anyone else, it has become public. To prove publication, it must be proven that at least one other person has seen or heard the alleged defamatory statement.
Fault is determined by the level of knowledge the defendant had at the time of the statement and their intentions or lack thereof in making the statement. Fault is judged differently depending on if a public figure or public official is the plaintiff or a private individual.
Public figures must prove “actual malice.” Actual malice either means the statement was made with a knowledge that it was false or with a “reckless disregard for the truth.” A reckless disregard for the truth occurs when an individual does not make reasonable efforts put in to find out the truthfulness of the facts before sharing them. An example of this could be a reporter who published a false statement about a public figure. If they had attempted to find the truth to a reasonable degree but the statement proved to be incorrect, no reckless disregard for the truth would have occurred. Since the reporter made reasonable efforts to verify the truthfulness of the
statement, the publication of the incorrect facts is simply a mistake. However, if the reporter heard a rumor and published it with no further research, that could constitute a reckless disregard for the truth.
Private persons have a much easier standard to prove. Public figures have voluntarily put themselves in the spotlight, and are often the topic of discussion, with both positive and negative things being said about them. An essential part of democracy is being able to debate the good and bad qualities of elected public officials, and that right to debate needs to be protected, so people can speak up without being worried they may be legally liable for their statements. A private individual’s life however, can be very affected by one false, published statement about them. Private persons need only to prove negligence, meaning the defendant failed to exercise reasonable care in verifying the truth of the statement.
The plaintiff must prove that they were specifically identified by the statement. A statement about “CEOs” or “actors” does not identify one person, and therefore cannot be defamatory. Directly using a name is the easiest way to prove identification but is not always necessary if there is no question about who the statement refers to. For example, in the widely popularized Depp v. Heard lawsuit, Amber Heard wrote an op-ed focusing on Johnny Depp’s alleged actions, which did not name Johnny Depp, but clearly referred to him. The jury found that although he was not named, the context was substantial enough to identify him.
A statement must damage someone’s reputation to be defamatory. Saying one person was born on February 20th when it was really February 23rd is demonstrably false, but does not impact their reputation in any way and thus is not considered defamatory. Statements must have a negative impact on reputation, but reputation is a difficult thing to gauge. One way to prove damage to one’s reputation is monetarily, whether through lack of employment opportunities or a business’s income decreasing quickly and suddenly. Another way is through drastic changes to how that individual is being treated. If others begin to treat the person poorly, through harassment, ostracization, etc., those changes in behavior can be measured, reported, and proven.
Defamation law plays a vital role in protecting individuals’ reputations from false and damaging statements while respecting the right to free speech. By recognizing what constitutes defamation and the legal recourse available, individuals can better protect themselves and others from reputational harm.
