Defamation occurs when an individual makes false and malicious statements about another, either in writing on through the spoken word. As a legal concept, defamation works to remedy situations in which an individual’s words cause harm to another individual’s reputation or livelihood.
An individual who has experienced defamation also referred to as being defamed, may sue the individual responsible for the defamation in civil court. Defamation of character is an umbrella term used for any statement that damages another individual’s reputation.
There are laws in place in the United States that are intended to prevent individuals from ruining other individual’s lives when it comes to their:
- Career;
- Reputation; and
- Personal life.
Citizens, however, have the right to speak freely about each other without fear that they will be hauled into court for litigation. Defamation laws are an attempt to balance this freedom of speech.
What is the Difference Between Libel and Slander?
Libel is written defamation, which may include defaming an individual in a book or a newspaper. This form of libel may also cover businesses, not just individuals.
In addition, libel may also refer to a visual depiction as well as published statements that are made on:
Libel is considered to be damaging to an individual’s reputation due to the fact that defaming information may be read by large numbers of people. In order for an individual to recover for libel, the false statement is required to actually harm the reputation of the other individual, as opposed to being merely offensive or insulting.
Slander is a spoken form of defamation. It involves the oral publication of defamatory remarks that a third party hears.
The distinction between libel and slander is in the method of publication. However, it is important to note that in recent years, courts have held that there are not many differences between these two categories of defamation.
How Do I Prove Defamation through Libel or Slander?
The state laws governing defamation through the legal theories of libel and slander vary by state. There are, however, some general rules that an individual is required to prove to show that the statement made was, in fact, defamatory.
The false statement must harm the reputation of the other individual, as opposed to only being offensive or insulting, as noted above. Statements may be considered defamatory if they were:
- Published;
- False;
- Injurious; and
- Unprivileged.
The legal definition of a statement is something that can be:
- Spoken;
- Written;
- Pictured; or
- Gestured.
A published statement is a statement that was seen or heard by a third party. However, it does not necessarily mean that the statement was printed in a book or magazine.
This definition includes:
- Radio;
- Speeches;
- Television;
- Social media; or
- Loud conversation.
A defamatory statement must be objectively false. This is because a true statement is not considered damaging to others.
The plaintiff must prove that the statement caused them to harm in some way. Examples may include losing their job due to the statement or being shunned or harassed by their neighbors due to defamatory remarks.
The statement must be unprivileged. This means that, in some circumstances, including witnesses testifying in court or lawmakers making statements in the legislative chamber, individuals are not held liable for statements that may otherwise be considered defamatory.
What are Common Employment Situations Where Defamation Claims Arise?
Defamation may occur in certain employment situations, including:
- Job references;
- Termination of employment; or
- Business communications.
Employers are not permitted to be untruthful when discussing their former employees. Although employers may speak candidly of former employees, they should not make untrue remarks regarding an individual’s character or performance.
Doing this may cause employee issues with gaining future employees. This may occur if an employer falsely portrays a former employee as an individual who discriminates against a protected class of individuals.
The termination or resignation of an employee should remain confidential. An employer should not discuss or criticize an employee in the presence of others, including why they were terminated or resigned.
An employer may be liable for employees who make false statements regarding business matters or other individuals, called business communications. This is because they are representing the company while operating in their capacity as an employee.
The employer may be vicariously liable if they make a defamatory statement.
What Do Commercial Defamation Lawyers Do?
When an individual speaks or writes a statement that is false and damaging to the reputation of another business or professional, and those statements are available to a third party, the defaming party may be liable for commercial defamation. Defamation lawyers help individuals who have been wronged by false and damaging statements made by other individuals to hold them accountable for the damage they caused.
What are the Elements of Commercial Defamation?
A business or professional is required to bring a claim of commercial defamation to show successfully:
- There was a communication to a third party;
- That was false;
- Concerning the business or professional’s reputation; and
- Which is communicated to a third party as a true statement.
It is important to note that different states may require proof of additional elements, including malicious intent by the speaker and actual damages suffered by the victim.
Will Unintentional Communication Make Someone Liable for Commercial Defamation?
It may be possible for an unintentional communication to make an individual liable for commercial defamation if the speaker was negligent in making these damaging statements. For example, if the individual knew or should have known that these statements could be heard by a third party who would understand them as derogatory and take them as true, the speaker may be held liable.
What Types of Communications are Considered Defamatory?
Many courts use a standard to determine what statements are considered defamatory, which requires the statement to be understood by the community to damage the individual’s reputation. A statement of opinion or an annoying, unflattering, or embarrassing statement will generally not be considered defamatory.
In the context of commercial defamation, the courts will focus on a statement that will injure an individual’s trade or business and their ability to make a living. In addition, individuals who are public figures will be required to demonstrate actual malice.
What are Some Examples of Commercial Defamation?
Examples of commercial defamation may include, but are not limited to:
- Falsely accusing a professional that they do not have the particular skills or qualifications essential to their occupation;
- Statements implying dishonest or corrupt behaviors, such as overcharging;
- Statements imputing poor credit, bankruptcy, and poor financial health; and
- Statements regarding mental disorder or incapacity.
How can One Defend Against a Commercial Defamation Claim?
An individual who is accused of commercial defamation may raise one of the following defenses, if available:
- The statement made was a truthful statement;
- The defamer had the consent of the business or professional to make the statement; and
- The statement was not intended to convey facts but was meant to be a parody or a joke.
Do I Need an Experienced Lawyer?
If you believe an individual has defamed you or your business, a business lawyer can help review your case, determine if defamation occurred, and assist you with filing a lawsuit.
Your lawyer will also help if you have been unfairly treated because you filed a defamation claim against someone else. If you are being sued for commercial defamation, you must consult with a lawyer as soon as possible.
