What is Defamation? The Basic Elements of Slander and Libel.

July 2, 2012

Last week in United States v. Alvarez, the United States Supreme Court struck down the "Stolen Valor Act" which made it a crime to lie about receiving a military decoration or medal. The court recognized that a lie, in and of itself, is protected by the First Amendment unless it creates some "legally cognizable harm." One of the types of "legally cognizable harm" recognized by the court was defamation. In California, the rules on defamation change depending on whether the defamed individual is a public figure or a private figure and it also depends on whether the lie is about a matter of public concern or private concern. As a business law litigation attorney, most of the defamation cases I deal with involve private figures who are defamed about private matters. Most of our cases arise in a business context where two parties have a dispute and then tell others about their point of view.

Gossip.jpgThe elements of this type of defamation action can be found in the California Civil Jury Instructions. First, the statement had to be made to a person other than the Plaintiff. In other words, it is not defamation to tell someone a lie about themselves. If some one writes a letter addressed to you personally telling you that you cheated them on a real estate transaction, that alone is not defamation; the statement had to be made to someone else. However, let's say you are in a crowded elevator and someone loudly shouts defamatory statements to you. Since the statement was heard by others, that may satisfy this requirement.

Second, the statement had to be understood to be about the Plaintiff. Using an example from the world of horse law; if someone said "there is a breeder, I'm not going to mention their name, who sold me a breeding and never delivered it" and the listener was not in the horse world and had no idea who that breeder was, that is not defamation. If however, the speaker was pointing to a brochure that contained the breeder's name, that would satisfy this element of defamation.

The third element of defamation is critical. The statement must tend to expose them to "hatred, contempt, ridicule or shame", discourage others from dealing with or associating with them, or injury them in their occupation. So it is not enough to make a statement about someone, the statement must fall into one of these categories. For example a California court said that it was not actionable to call someone a "dumb ass" because that is "general expression of contempt essentially devoid of factual content." (Vogel v. Felice.)

The fourth element of defamation goes to the heart of the action. The statement must be false. Most people have heard the expression "truth is a defense" with reference to defamation actions and it is. I have found that in most defamation cases, the focus of the case seems to be on whether or not the statement was, in fact, true.
Second, the statement had to be understood to be about the Plaintiff. Using an example from the world of horse law; if someone said "there is a breeder, I'm not going to mention their name, who sold me a breeding and never delivered it" and the listener was not in the horse world and had no idea who that breeder was, that is not defamation. If however, the speaker was pointing to a brochure that contained the breeder's name, that would satisfy this element of defamation.

Many people are under the false belief that if they simply repeat what someone else said, it absolves them of responsibility. However, you do not need to be the originator of the defamatory statement to be sued for defamation. If you mindlessly fail to investigate whether a particular statement is true or false before repeating it you also can be sued for defamation. This is where the danger of gossip rises to a legal issue. The law requires that you take "reasonable care" to determine whether the statement you say is true or false.

The final element of defamation is damage. You must be able to provide that you suffered harm to your "property, business, profession or occupation" as a result of the statement. If no one believed the false statement and you suffered no damages, there is no defamation.

Adina T. Stern has represented businesses and individuals, in connection with slander, libel and defamation issues for over 30 years throughout Los Angeles County, Orange County, San Bernardino County, Riverside County, and San Diego County, including Beverly Hills, Cathedral City, Chino, Coto de Caza, Irvine, Palm Springs, Rancho Mirage, Rancho Santa Margarita, West Hollywood, and West Los Angeles.