Defamation, a term encompassing both libel and slander, is the unprivileged publication of false statements which naturally and proximately result in injury to another. In other words, defamation occurs where someone makes false statements or writing about you to other people which harms your reputation. Slander is spoken defamatory statements, and libel is written defamatory statements.
Proving defamation requires a showing of: 1) publication, 2) falsity, 3) if the false matter is concerning a public official, the defamer must act with “knowledge or reckless disregard to the falsity” or at least do so negligently if it concerns a private person, 4) actual damages, and 5) the statement must be defamatory.
Publication entails the statement being communicated to a third person. Historically, publication occurred through a newspaper or magazine, but now social media and web pages are often the medium used to defame.
The defamatory statement must be false. Further, Florida law also recognizes “defamation by implication,” where a truthful statement is used in a way that implies something defamatory about a plaintiff.
The knowledge of the publisher differs based on whether the defamatory statement concerns a public official/public figure or a private person. Determining whether one may be considered a public official is not always clear. New York Times Co. v. Sullivan, a United States Supreme Court case, established that a public figure alleging defamation must prove “actual malice,” meaning that the alleged defamer knew the defamatory statements were “false, or published them with reckless disregard despite awareness of their probable falsity.” However, a private individual must just prove negligence in the publication rather than actual malice.
Actual damages must also be proven. Some statements are defamatory on their face without additional proof, meaning they are “per se” defamatory. If a statement is defamation “per se,” the victim does need not prove malice or any special damages because courts presume legal injury based on the defamatory statement itself. Examples of defamation “per se” include wrongfully accusing someone of committing a felony, having a loathsome disease (such as a sexually transmitted disease), or business misconduct.
Just because a statement is “defamation per se” does not necessarily entitle the victim to a substantial sum of money, it just means the victim does not have to prove “extrinsic facts”( unpublished facts that would lead to injury). The “per se” requirement makes proving the case easier for the victim. A victim may recover money for out of pocket loss, impairment of reputation and standing in the community, personal humiliation, mental anguish and suffering. Finally, the statement must be defamatory. Courts look to the alleged defamatory statement within the totality of its context. It is not enough that the statement hurts one’s feelings or insults them, it must actually result in injury to their reputation. Essentially, it must prejudice the victim by making them the object of hatred, distrust, ridicule, contempt or disgrace, not necessarily in all of the community, but with substantial and respectable minority, resulting in personal, social, official, or business relations injury. An alleged defamer has multiple defenses (to be addressed in an additional post).
While the above is a basic overview of what constitutes defamation of character, slander, and libel, technology has created more avenues and access for victims to be defamed. We receive many calls from victims who have been negatively and falsely characterized through social media, on a website, or even in an email and are available to consult on these matters.