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What is “Defamation”?
Defamation is the publication of an untrue statement about another that subjects that individual’s 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.
- Note: 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.
Discussion: 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 that personal character defamation? Why or why not?
Practice Question: Marvin gets into an argument with his supervisor and quits his job. He lists his employer on his résumé. 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 the 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 need 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 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). Bisuness 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