Defamation - Tort Action
A Civil Action from Stating Falsehoods About Someone
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Table of ContentsWhat is Defamation?What is Required for a Defamation Action?Types of DefamationDiscussion QuestionPractice QuestionAcademic Research
What is Defamation?
Defamation is the publication of an untrue statement about another that subjects that individuals character or reputation to contempt or ridicule.
Publication simply means that the untruthful statement was told or made known to at least one other person.
Next Article: Defenses to Defamation Actions Return to: TORT LAW
What is Required for a Defamation Action?
A Defamation Action requires two elements:
- A false statement about another person,
- Communicated to at least one other person, and
- Subjects that person to ridicule or disrepute.
Individuals and businesses can sue for defamation.
In business, false accusations of dishonesty or inability to pay one's debts frequently lead to defamation suits.
Approximately one-third (1/3) of all defamation claims are brought by employees against present and former employers.
Types of Defamation
There are three general types of defamation:
- Slander - Slander is spoken or oral defamation.
- Libel - Libel is recorded defamation (i.e., written) or defamation over the television or radio.
- Disparagement - Disparagement is defamation of another person's trade or business prowess, product, or service.
Why do you think the government recognizes a legal cause of action for defamation? Should a business's reputation be treated differently than an individual's reputation? Why or why not? Should verbal defamation be treated differently than recorded defamation? Why or why not? Should defamatory statements be treated differently depending upon how they are communicated (written, spoken, text, song, video, etc.)? Why or why not? Why do you think actions for defamation are common in the employment context? Should employment-related defamation be afforded greater or lesser protection than personal character defamation? Why or why not?
Marvin gets into an argument with his supervisor and quits his job. He lists his employer on his resume. When a potential employer calls his former employer to verify his employment, his former supervisor says all sorts of harsh and arguably untrue things about Marvin. Marvin does not get the job. Does Marvin have a legal action against his former employer?
- Defamation refers to the tort of one person publishing false statements about another person with the intention of ruining that person's reputation or character. If the statement is made in writing and published then it is called libel. If a hurtful statement is spoken then it is called slander. Elements of defamation include:
- Someone made a statement. The statement needs to be either spoken or written or otherwise expressed in some manner.
- The said statement was published. This means that a third party must have seen, heard, or read the defamatory statement.
- Injury. To succeed in a defamation lawsuit, the statement must be shown to have caused an injury or damages to the subject of the statement. The statement needs to have hurt the reputation of the subject of the statement.
- Falsity. The statement will succeed in defamation if indeed the statement was false.
- Unprivileged. The statement need not be privileged, meaning that that statement cannot be used by another person as evidence before the court.
- Twomey, David P., Recent Trends in Defamation Law: From the Straightforward Action in Venture V. Kyle to Unmasking an Anonymous Poster in the "Fuboy" Case (February 7, 2015). Business Law Review, Vol. 48, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=3119983
- Baker, Roy, Defamation and the Moral Community (March 3, 2008). Deakin Law Review, Vol. 13, No. 1, pp. 1-35, 2008. Available at SSRN: https://ssrn.com/abstract=2354820
- Rubinstein, Mitchell H., A Peek at New York Defamation Law (November 2010). New York State Bar Journal, Vol. 82, p. 58, Nov./Dec. 2010; NYLS Legal Studies Research Paper No. 10/11 #14. Available at SSRN: https://ssrn.com/abstract=1719601