What is Defamation and How to Defend It?

Introduction:

Law exists to maintain order and protect the victims from all kinds of harm. Criminal liabilities involve all the actions that cause bodily harm e.g. murder, theft, robbery etc, whereas civil liabilities include other acts like fraud, misrepresentation, breach of contract etc. Law further extends to protect us from the abstract harm. For example, if someone tries to hurt our reputation in any way we can take an action against this tort and claim damages against the wrongdoer. The tort which involves damaging someone’s reputation by means of written or oral statements is called defamation.

Types of Defamation:

The written defamatory statement is known as libel whereas if a person hurts someone’s reputation by using spoken words, it’s called slander.

An action can be taken against the person who commits defamation. He can be sued and made liable to pay damages for the loss caused to the victim from their defamatory statement.

When is libel actionable per se?

To establish libel or a written defamatory statement it’s not necessary to prove the damage caused.  However, it’s important to show its published version in order to establish the tort of defamation.

When is slander actionable per se?

To achieve success in establishing slander against a person, the claimant must show the actual damage caused to them, whether financial or any other loss. However, there are a few exceptions that eliminate the need to show any prove. Let’s see what they are!

1. When the statement declares that the claimant has committed a cognizable offence.
2. When the statement shows that the claimant has a contagious disease e.g. AIDS.
3. When the claimant is alleged to be a woman of bad character.
4. When the statement regards the claimant unfit for a certain job or profession they’re employed in.

Elements of Defamation:

It’s important to establish the following elements in order to sue someone for defamation:

• The statement whether oral or written must be defamatory in nature.
• The statement should aim at attacking the reputation of the claimant.
• The defamatory statement should be published. Published here doesn’t mean showing the printed version but that the statement must be communicated to a third party.

Defenses to Defamation

Suppose someone is falsely accused of defamation then they can seek a few defenses in the Court which might release them from the allegation.

1. Justification- The accused can escape the charge of defamation if the statement is justified by them in the Court.
2. Fair comment- If they establish that the comment was fair even if it was defamatory.
3. Absolute privilege- If the statement is made by the following:
   • By a parliament member in the Parliament.
   • By a spouse to their spouse
   • By a Judge or any person during the Court proceedings.
   • Statements made in the media reports regarding judicial proceedings
4. Qualified privilege- These are the statements made for the purpose of public interest and that are true, accurate and without any element of malice or bad faith.
5. Offer of amends- Under this defense, the defendant may make an offer to the claimant to pay the compensation for the loss caused if agreed.
6. Innocent dissemination- These are the statements made by the innocent printers and no action can be taken against them for libel.
7. Apology- A simple apology that can reduce the amount of damages payable by the defendant.

Remedies against defamation

There are mainly two remedies against defamation:

• Damages
• Injunction

Key Facts and Statistics

• The damages due to defamation are divided into four particular types:
  1. Actual
  2. Special
  3. Presumed and
  4. Punitive.
• The libel and defamation jurisdictions in the United States are friendly towards the defendant.
• Defamation laws in the United States have developed very differently which depend on the states. Federal defamation and state defamation laws are significantly different.
• Some states of the United States have listed defamation to be a criminal wrong, but others have not done so.
• The world of the libel and defamation law has become more difficult and complicated with the advancement of the internet and Section 230 of the CDA (Communication Decency Act).
• According to Section 230 of the CDA, ISPs or websites cannot be held liable for online defamation or libel performed by their users, until and unless the ISPs or websites do some material alteration in the online contents.