What is the Difference Between an Insult and a Defamatory Statement?

Before taking legal action against an individual for unsavory or harsh statements communicated about you, it is critical to first understand the difference between defamation and an insult. While insults may be offensive, they are not unlawful. A defamatory statement, on the other hand, can be the basis for a lawsuit.

But, what exactly is the difference between a defamatory statement and an insult? An insult is a rude or offensive remark that can be truthful or a matter of opinion, while a defamatory statement contains a false assertion of fact that injures another’s reputation. Insults can, however, cross the line into defamation if they consist of false statements that damage another’s reputation.

At Minc Law, we analyze the difference between insults and defamatory statements every day and advise on the best course of legal (and non-legal) action for our clients. We have authored state-by-state defamation law guides for more than 22 states, so we are very familiar with the intricate formalities and requirements for bringing a defamation claim across the United States (and globe).

In this guide, we define the difference between an insult and defamation and discuss what you can do if you are the target of defamatory statements. We also cover strategies on how to respond if you are being insulted online.

Legal Difference Between Defamation & an Insult

Defamation is defined as the act of damaging a person or entity’s reputation with false statements that are either written or oral (libel or slander). An insult, on the other hand, is a disrespectful remark or action made with the intent to hurt someone’s feelings.

Insults normally do not meet the criteria for a defamation claim because they are often the product of an emotional outburst – made to offend the receiver of the insult. Also, insults typically contain opinions that can not be proven true or false. Because falsity is a necessary element to prove defamation, mere opinions – even those that are insulting – do not typically rise to the level of defamation.

Additionally, insults tend to be directed at the person the insult is about, whereas defamatory statements must be communicated or published to a third party.

What is the Difference Between Slander & Libel?

Defamation is a false statement published or communicated to a third party that causes damage to a third party’s reputation. Depending on the medium, defamation can be considered either slander or libel.

What is Libel?

Traditionally, libel was defined as defamation in written form. Today, libel encompasses written statements (both on paper and online), pictures, or videos “published” to third parties. Most cases of online defamatory speech are considered libel.

What is Slander?

While libel is recorded or written defamation, slander is spoken defamation. When you encounter a false statement communicated orally, slander is often at play.

Traditionally, courts have recognized a distinction between spoken (or oral) defamatory speech and written defamatory speech because the former is considered more transitory, readily forgotten, and less likely to cause serious damage.

As a consequence, courts required proof of damages to succeed on a slander claim, unless the statement was so harmful that damages can be presumed. This is referred to as slander per se.

What Are the Elements of a Defamation Claim?

To succeed on a defamation claim, a plaintiff must prove the following four elements:

1. A False Statement Was Made About the Plaintiff

First, the statement must assert a false statement of fact. It must be both unsubstantiated and unprotected under the law—and a reasonable person must understand that the statement is about the plaintiff.

2. The Statement Was Communicated to a Third Party

Next, the false statement must be communicated to a third party either orally or in writing. A statement that was only shared with the plaintiff will not qualify as defamation.

3. The Statement Was Made With at Least a Negligent Level of Intent

The plaintiff must be able to demonstrate that the defendant acted negligently. In other words, they did not act with reasonable care when determining whether the statement was true or false.

4. The Statement Caused Damage to the Plaintiff’s Reputation

Finally, the false statement must cause damage to the plaintiff’s reputation. Reputational damage can take the form of financial losses, mental distress, or physical harm.

When it comes to a business, the damage will generally be a negative impact on the business’s reputation or other losses to the business’s bottom line.

Effects of Defamation Compared to the Effects of an Insult

Another key difference between insults and defamation is the consequences that result from their publication. While insults can certainly be offensive, defamatory statements tend to yield more devastating consequences (and actual damage) than mere insults.

Effects of Defamation on Individuals & Businesses

Harm to Reputation

The most frequent consequence of defamation is damage to one’s reputation. If, for instance, a co-worker spreads false statements about you at work, it could harm your reputation among superiors – which could lead to missed promotions or termination.

Financial Loss

Another common effect of defamation is financial loss or harm. If a business is being defamed, it could cause potential customers to take their business elsewhere, resulting in lost revenue.

Emotional & Physical Harm

In some situations, defamation can affect one’s mental, emotional, and physical health. Defamation can result in stress, anxiety, insomnia, and depression, all of which can take a toll on your mental and physical well-being.

Effects of an Insult

Emotional & Physical Harm

Insults can cause emotional and physical distress just like defamatory statements. In fact, most insults are intended to hurt another person’s feelings. So if you are called “stupid” or “crazy,” for example, these insults may take a toll on your mental and physical health.

If someone is repeatedly insulted, it can cause stress, anxiety, insomnia, and depression. It may even cause a person to harm themselves or others.

Public Humiliation

If the insult is made in public, the person on the receiving end may feel public humiliation or shame. Public humiliation can also lead to anxiety, depression, and other mental anguish.

What Are Some Examples of Defamation & Insults?

Defamatory statements can sometimes include an insult. To better illustrate the difference between defamatory statements and insults, we provide several explanatory examples.

Example of a Defamatory Statement

Imagine Jane Doe communicated to a third party that, “John stole $1,000 from the campus bookstore.” If John did not steal from the campus bookstore, this statement could be considered defamatory. Not only can the statement be proven false but it can be proven that the statement was made with the intention of harming John’s reputation.

Example of an Insult

Now imagine in a conversation between Jane Doe and John, Jane said, “John you are stupid.” While this statement is offensive, rude, and insulting, it does not rise to the level of defamation.

First, the statement contains an opinion that cannot be proven true or false. Whether one is “stupid” is subjective, so John would not be able to prove that Jane’s statement was false. Secondly, the insult was not communicated to a third party and will not result in harm to John’s reputation, two requirements for defamatory statements.

Other Examples of Defamatory Statements

Most states recognize a concept known as “defamation per se,” a legal doctrine that defines certain types of defamatory statements as so inherently harmful that reputational damage is assumed, and does not need to be proven by the plaintiff.

The following four statements are considered so inherently damaging that that plaintiff need not show they suffered damages:

• A statement that the plaintiff committed a crime
• A statement that the plaintiff is infected with an offensive or contagious disease,
• A statement that the plaintiff is sexually promiscuous, and
• A statement that the plaintiff is unprofessional or incompetent in their profession.

What You Can Do About Defamation Compared to an Insult

If you or your business are being defamed, you may be able to take legal action against the person defaming your character. If you are experiencing defamation, you have remedies available that you can use to restore your reputation and to get the defamation to stop.

First, you can send a demand letter (such as a defamation cease and desist) to the person making the false statements. Though, this should be done with extreme care as demand letters can potentially draw more unwanted attention to defamatory content.

Second, you can file a defamation lawsuit to secure a court order to remove content or obtain damages for the harm you have suffered from the defamation.

Insults, on the other hand, are typically not something you can sue over. Unfortunately, the law does not protect against insults or rude comments. However, there may be some limited circumstances where you can sue someone for insulting you.

For example, if an insult is discriminatory against your race or religion, there may be legal action you can take depending on the context and state law.

How Can You Address Defamation of Your Character?

If you are the subject of defamatory statements, there are countless steps you may take to remedy the situation and defend yourself. The following is a list of measures to take in response to defamation of character.

Remain Calm

If someone is defaming you, it can be tempting to respond in kind. However, you should not lash out, insult, or defame the person making the statements about you. This may make the situation worse or hurt your chances of success in a lawsuit.

Preserve the Evidence

Even if you do not end up filing a defamation lawsuit, it is critical that you preserve a copy of the defamatory statement. Whether you take a screenshot of the statement or make a recording, make sure you keep evidence of the defamation.

Compile Supporting Evidence of Damages

To succeed in a defamation case, you need to show that what was said or written is false. Compile any evidence that shows that the statements were not factual.

Also gather evidence of reputational harm that occurs after the defamation, such as a loss in business revenue. This can help show that you suffered damages.

Make a Public Statement

If your reputation is being attacked, consider issuing a public statement to defend yourself or your company. We recommend discussing this option with an attorney or public relations specialist before making any public remarks.

If you do decide to issue a public statement, we recommend reading our comprehensive resource outlining how to effectively speak to the media.

Work With an Experienced Defamation Attorney

Consult an experienced defamation attorney to help you identify all your legal and non-legal options to respond to the defamation. Even if a defamation lawsuit is not the best course, an experienced attorney will be able to help you weigh all your options and select the best path forward.

How Do You Address an Insult Aimed Toward You Online?

Dealing with the shock and hurt feelings from being insulted online can be difficult and confusing to navigate, but there are things you can do. Below are a few steps you can take to address online insults.

Take a Deep Breath & Remain Calm

Insults can be hurtful and embarrassing. We suggest taking a deep breath and remaining calm. It may be a good idea to step away from your computer or device and take a short walk to cool off. Once you have a clear head, it will be much easier to decide your next steps.

Do Not Engage

Do not engage with the person making insults. Engaging in a battle back and forth with the person who insulted you will only lead to more damage and hurt feelings. It is always best to take the high road and walk away from a rude conversation.

Ignore It

Sometimes the best option is to do nothing at all. This is an excellent tactic to use if you know someone is just trying to get under your skin. Keeping silent will also avoid an argument.

Keep Your Sense of Humor

In certain situations, it pays not to take someone’s insult seriously. It can be good to laugh at yourself and take comments with a grain of salt.

Talk With Someone

Consider speaking with a family member, friend, or professional about the situation. Sometimes others can give you a different perspective and lift your spirits.

How to Sue for Defamation

The decision to file a defamation lawsuit should not be taken lightly. Every defamation claim is different. When assessing a libel or slander claim, several factors must be taken into account. Defamation law is highly nuanced, and state laws can vary considerably. It is not like other types of personal injury lawsuits and claims.

If you want to sue for slander, libel, or defamation, we recommend taking the following steps:

1. Contact an experienced defamation attorney,
2. Determine if you have a valid defamation claim,
3. Gather and preserve the evidence,
4. Identify the best court to file the defamation lawsuit,
5. Comply with all pre-suit filing requirements,
6. Consider alternative dispute or pre-suit resolution tactics, and
7. Draft, file, and serve the legal complaint on the defaming party.

What Should Be Your First Step in Taking Legal Action Against Defamation?

Your first step in taking legal action against defamation is to contact an experienced defamation attorney. They will be able to help determine if you have a valid defamation claim, discuss your legal options, and help you decide the best path forward.

Before meeting with an attorney, make sure you have the following prepared:

• A copy or printout of the defamatory statement(s),
• A list of people who may have information about the statements,
• Proof of damages caused by the statements, and
• Any other evidence that might be relevant to your case.

Video: What Does it Take to File a Defamation of Character Lawsuit?

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Oftentimes, litigation is not the best or most practical option for individuals or businesses that are the subject of a false statement. Filing an ill-advised defamation lawsuit can lead to disastrous consequences, such as:

• Drawing more unwanted attention to the defamatory statement or content you want removed (a phenomenon known as the ‘Streisand Effect’),
• Filing your defamation lawsuit in the incorrect legal jurisdiction,
• Having your case penalized or thrown out altogether,
• Obtaining inadequate monetary and equitable relief, or
• Not taking full advantage of alternative claims.

It is essential to consult with an experienced defamation lawsuit attorney with experience with the laws in the state where the lawsuit will be filed. They can help assess and file your case.

What is the Statute of Limitations For Your Defamation Claim?

A statute of limitations is a time-limiting mechanism placed on a plaintiff’s ability to initiate a lawsuit. Every state’s laws governing statutes of limitations are different and there is not one uniform defamation statute of limitations across the United States. However, most defamation statutes of limitations range from one to three years.

In general, most states try to limit their defamation statute of limitations to one year. This is done to ensure the relevant information is still available and witnesses can be deposed. The statute of limitations for filing your defamation claim will depend on several key factors including:

• The jurisdiction where you file your defamation lawsuit;
• Whether any legal exceptions apply to your defamation matter, such as John Doe lawsuits, and
• The existence of other legal claims (like business disparagement, harassment, or revenge porn).

Video: What is the Statute of Limitations for Defamation in the U.S.?

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Why is it Harder For a Public Figure to Win a Defamation Lawsuit Than a Private Figure?

Celebrities and politicians are typically considered public figures due to their prominence in society and the media. But public figures could also be any person involved in a matter of public concern.

Because public figures benefit from their notoriety and are in a position more susceptible to public comment, the First Amendment requires them to meet a higher standard to succeed in a defamation lawsuit. The ability to discuss public figures without legal repercussions is also in the public interest.

As a result, public figures must prove a defendant acted with actual malice when making a defamatory statement. Actual malice is a higher standard of fault that is also more difficult to prove.

What Kinds of Damages Might Be Awarded in a Defamation Lawsuit?

There are typically three types of damages that can be awarded in a defamation suit:

1. Special damages,
2. General damages, and
3. Punitive damages.

Each type of damage has a different purpose and is awarded for different reasons.

Special Damages

Special damages, also referred to as economic damages, are relatively straightforward. An award of special damages is meant to reimburse a victim for actual financial losses. Actual losses might include lost income, lost business, and expenses incurred in response to defamation.

Special damages must be well-documented, but evidence of special damages is relatively easy to obtain. Special damages can be proven with bank statements, tax returns, and invoices and receipts.

General Damages

General damages can be harder to quantify in a defamation case because they compensate plaintiffs for emotional distress and reputational harm. It can be difficult to prove emotional distress in a defamation lawsuit.

A plaintiff’s testimony alone may be insufficient to obtain an award of general damages. The most effective method to show your reputation has been damaged is to offer third-party testimony as evidence of harm to your reputation.

If you’ve experienced emotional distress as a result of defamation, keep track of how it has impacted your daily life including disruptions to your routine such as sleeping habits, appetite, and participation in social activities. This information may be necessary to recover general damages.

Punitive Damages

Punitive damages are designed to punish defendants and deter wrongful conduct. However, they are not commonly awarded in defamation cases. In general, defamation plaintiffs must prove a defendant acted with actual malice to be awarded punitive damages.

Actual malice can be proven by showing the defendant knew the statement they made was false – and a defendant’s intent can be difficult to prove.

Punitive damages may also be limited by the court and jurisdiction. Yet, some defamation plaintiffs have been awarded punitive damages when the defendant’s conduct was especially egregious.

How Can an Attorney Help Fight Defamatory or Insulting Statements?

Defamatory statements against you or your company can be extremely harmful, time-consuming, and distressing. If you are the victim of defamation, it might be difficult to know how to proceed.

An attorney can help you understand your options for proceeding, whether you are looking to get the defamatory statement removed from the internet or obtain a court order. They also have access to investigative tools to help unmask the identity of anonymous defamers.

At Minc Law, not only do we know what it takes to effectively combat defamation but we understand the personal toll defamation can take. That is why we work hard to combat defamation discreetly, without drawing unwanted attention to the defamatory content.

★★★★★

“Melanie and the team at Minc did a great job taking offensive posts down of several websites. Quick and efficient, with good communication during the whole process. I can’t thank them enough!”

Anonymous

Jan 22, 2021

Reach out to schedule your initial, no-obligation defamation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.