Slander and libel are different types of attacks on an individual’s character that can lead to major lawsuits. “Defamation of character” is an umbrella phrase used to encompass damage to a person’s reputation. It’s considered tort, which is a civil wrong, but not a crime. Here are important facts to know about the differences between slander (spoken defamation) and libel (written defamation).

First Amendment and its Limits

While the First Amendment of the U.S. Constitution allows for freedom of expression, it does not necessarily protect against wrongful smearing of another person in public. At the same time, there’s a gray area involved that comes down to each unique case. Insults used in published commentaries, for example, don’t necessarily violate defamation law. Critiques of public figures that may include insults may also be protected by the First Amendment.

In most situations, no one is protected by freedom of speech when they make reckless statements or accusations about others publicly if the content is proven to be false while damaging the victim’s reputation. But there are certain exceptions.

Proof of Defamation

Although defamation laws are different for each state, there are four generally accepted rules that cross all state lines. In order to prevail in a defamation lawsuit the victim must show that the damaging material was 1) published, 2) false, 3) injurious and 4) unprivileged.

Published: 

This term refers to a statement that a third party beyond the publisher and the victim has heard or seen. It doesn’t necessarily apply to just print media (books, newspapers, magazines and fliers). It may also include other forms of mass communication such as television, radio, public speaking or even social media.

False: 

If the defamatory statement cannot be proven “false,” then it’s not considered damaging. Reviewers and commentators, for example, are allowed to state their views about politicians, books and movies, since they may just be giving their honest opinions. Calling a work of art “terrible” cannot be proven to be false, since everyone has their own opinion.

Injurious: 

This term means the alleged defamation has damaged the plaintiff’s reputation. The burden of proof falls on the plaintiff that the statement somehow hurt them financially or cost them relationships with others. Damage caused by media harassment may also be considered injurious, but usually not if the individual already had a known bad reputation in public.

Unprivileged:

 In some cases, even false statements don’t result in a settlement. The statement must be proven to be “unprivileged,” meaning not having special rights or advantages. Lawmakers, for example, cannot be sued for making statements in a legislative chamber, even if in other venues the statements are considered defamatory. Similarly, you cannot sue someone for lying about you on the witness stand, although they may separately face perjury charges. These scenarios are covered by free speech.

Planning for a Civil Trial

A plaintiff in a civil defamation trial must present either direct or circumstantial evidence. Using a witness that heard the defamatory statement, for example, is considered direct evidence. Meanwhile, if a series of facts indirectly prove other facts, it’s considered circumstantial evidence. Various forms of evidence may include witness testimony, documentation, physical evidence or demonstrative evidence. This evidence must meet all the elements of a defamation claim, which is known as establishing “prima facie.”