FAQ: Questions and Answers

[back to notice text] Question: What is libel? Answer: Libel is a false statement of fact expressed in a fixed medium, usually writing but also a picture, sign, or electronic broadcast. See What are the elements of a defamation claim? [back to notice text] Question: What is libel per se? Answer: When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se: A statement that falsely: Charges any person with crime, or with having been indicted, convicted, or punished for crime; Imputes in him the present existence of an infectious, contagious, or loathsome disease; Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; Imputes to him impotence or a want of chastity. Of course, context can still matter. If you respond to a post you don't like by beginning "Jane, you ignorant slut," it may imply a want of chastity on Jane's part. But you have a good chance of convincing a court this was mere hyperbole and pop cultural reference, not a false statement of fact. [back to notice text] Question: What is defamation? Answer: Generally, defamation is a false and unprivileged statement of fact that is harmful to someone's reputation, and published "with fault," meaning as a result of negligence or malice. State laws often define defamation in specific ways. Libel is a written defamation; slander is a spoken defamation. [back to notice text] Question: What defenses may be available to someone who is sued for defamation? Answer: There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.) 1. Truth. This is a complete defense, but may be difficult to prove. 2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." ( Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.) 3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice. 4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive. 5. Innocent dissemination. In some caes a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement. 6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

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