Libel and Slander Per Se
Per Se is a Latin term meaning “of itself” or “for itself.” Defamation per se, whether it is libel (written) or slander (spoken), is a statement that is defamatory on its face. It is a statement that is deemed to cause such great harm to the one who has been defamed that damages are presumed. The plaintiff will not have to prove actual damages to make a claim.
Either libel or slander can be actionable per se. The statement must fall into one of the following categories:
- Attacking someone’s professional standing
- Alleging someone has a loathsome disease
- Accusing someone of a crime
- Implying a person is immoral or unchaste
Is it Libel or Slander?
Defamation can be typically be categorized as either the tort of libel or slander. Libel constitutes defamation in the form of written or printed words. Slander constitutes defamation by spoken words or gestures. However, the manner in which defamatory material is distributed, as well as the character of the presentation, can influence whether the material is considered libel or slander.
The most common method of publishing libelous material is newspapers, books and magazines, or on-line versions of each of these, as well as other on-line sources. This includes pictures and caricatures, or anything else that is embodied in physical form.
If the defamatory material is spoken or distributed by way of a gesture, such as a nod of the head, generally it is slander. However, courts and statutes in some states have designated defamation by broadcast over radio or television as libel, even if the material is not read from a manuscript. This is because the wide dissemination of such a broadcast can potentially cause the same harm as written material. This rule may vary from state to state.
Furthermore, a defamatory statement that is delivered orally by reading a defamatory writing aloud, or by dictating with the intention that the statement be written, is considered libel, not slander, although the audience received the statement orally. This is supported in several Court decisions, including McCoombs v. Tuttle, 5 Blackf. (Ind.) 431 (1840), Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595 (1943) and Garren v. Southland Corp., 237 Ga. 484, 228 S.E.2d 870 (1976).
The distinction is important when a plaintiff considers filing a claim of defamation because a successful slander lawsuit may require proof of special damages where libel does not.
Elements, Damages and Defenses of Libel and Slander
Libel and slander both fall under a claim of defamation, which requires that a plaintiff prove:
- The defendant made a false and defamatory statement concerning the plaintiff.
- The defendant made an unprivileged publication to a third party.
- The publisher acted at least negligently in publishing the communication.
- The plaintiff was harmed in some way.
For any defamation claim, the plaintiff must be identifiable and the material must be such that a reasonable person would view it as defamatory.
In any defamation claim, truth is an absolute defense. A defendant may also claim the material was privileged, meaning the statements were made in a court of law or about public figures in the process of engaging in official duties.
The difference between these two types of defamation lies in what must be proven in a court of law. The plaintiff in a libel suit may collect general damages by proving simply that the statement was defamatory. In a slander suit, the plaintiff must prove special damages—specific monetary losses as a direct result of the defamatory statement—unless the defamation is in the “per se” category. In these cases, defamation and damages are assumed and no proof is needed. A libel claim may also be considered per se.
The distinction between libel and slander, as well as consideration of defamation per se, is addressed in Grein v. La Poma, 54 Wash.2d 844, 340 P.2d 766 (1959).
Per Se Categories:
1. Allegations of a crime or criminal conduct
The criminal offense alleged does not have to be accompanied by certain punishment or risk of punishment, so it is immaterial if the charge alleges that a person was tried and acquitted. It is immaterial if the statement is such that the statute of limitations would have run or that the crime is not a crime where it is alleged to have occurred. It is enough that the act is a crime where the statement was published.
Allegations of any crime involving moral turpitude (an inherent baseness or vileness of principle) would be considered actionable per se. Examples of such crimes include treason, espionage, murder, rape and perjury, to name a few. Page v. Merwin, 54 Conn. 426, 8 A. 675 (1887).
A person is liable to another if he/she charges another with a crime or implies that another has committed a crime or a type of crime, even if the alleger expresses doubt or disbelief in the charge. The statement must, however, impute the person committed a crime, not that they have the capability of committing a crime or intent to commit a crime.
2. Allegations that the person has a loathsome disease
Under common law, decisions for these allegations have generally referred to diseases that are contracted only through sexual intercourse. Other diseases, however could fall under this category.
To be actionable per se the disease must be especially repugnant and be likely to linger or be chronic. Leprosy is included in this rule. Typhoid and AIDS could also be included, although common law has not yet addressed these diseases.
An allegation also must state that a person actually is infected with the disease. It is not enough to imply that a person had the disease in the past or may have been exposed to it, unless the statement causes the recipient to believe the person is infected at that time. Bruce v. Soule,69 Me. 562 (1879).
3. Allegations that attack the person’s professional standing
For a statement to be defamatory per se under this rule, it must be such that it damages the person’s ability to pursue his/her business, trade or career. The statement must so lower a person’s business or trade reputation that he or she cannot conduct business successfully.
This rule applies to anyone engaged in a lawful business or profession or who holds a public or private office. Merchants, skilled or unskilled workers and officers or agents of a corporation are protected under this rule, as is the corporation itself.
The disparaging statement must refer to a characteristic or skill that directly applies to a person’s profession. A person who has retired, therefore, would not be defamed by a statement referring his former job. A disparagement of a general character trait would be defamatory per se only if the character trait is uniquely valuable to the person’s profession.
If a statement makes reference to a single act of misconduct, it will be actionable only if by alleging such an act, it implies that the behavior is habitual. Camp v. Martin, 23 Conn. 86 (1854); Johnson v. Robertson, 8 Port. (Ala.) 486 (1839).
A statement made disparaging someone’s goods is actionable under this rule only if the statement implies that the maker or vendor is dishonest, fraudulent or incompetent, as this rule applies specifically to a person’s reputation.
4. Implications that a person is immoral or unchaste
Under this rule, allegations that a person has been unfaithful or promiscuous are actionable per se only if they are leveled against a woman. A man who is imputed to have been unfaithful or promiscuous must prove damages in order to have a claim, unless the allegations constitute a criminal offense or are disparaging of his business or professional reputation, in which case, they would fall under one of those two rules. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927).
The allegations may be against a woman who is married or single and they may imply anything from general unchaste conduct to adultery. The rule does not apply to immodesty.
Although the same allegations against a man are not actionable, constitutional requirements of equality of treatment between sexes may change this. There also have been indications that relative to homosexual conduct this rule will be applied to both men and women, although there have been no decisions yet by the Courts. Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318 (1964).
Proof of Harm Requirement for Libel and Slander Damages
Although the laws vary from state to state, libel, written material which is defamatory of another, is generally actionable regardless of whether special harm results from its publication. This means that even if the plaintiff cannot show some kind of economic or pecuniary loss, he or she can recover for actual harm, provided the material is false, the defamer did not have privilege to publish it and the plaintiff can show at least negligence in the publishing of the material.
If the defamer did not have knowledge that the material was false and the plaintiff cannot prove negligence on the part of the defamer, the Supreme Court is now generally requiring some proof of harm to the plaintiff’s reputation in order to award damages. In some cases the court may award nominal damages if no actual harm is proven.
A plaintiff may also recover damages for special harm that is proven, even though special harm is not a requirement in a libel action.
By contrast, slander, which is spoken defamation, requires proof of special harm in order to be actionable, unless it is actionable per se. This means the plaintiff must prove some type of economic or pecuniary loss, unless the slander falls into one of the per se categories.
Special harm does not have to possess a direct monetary value but it must be a benefit that has at least an indirect monetary value to the plaintiff. The loss could be companionship or association with friends, or loss of connection with society in general, if the loss of any of these is such that it can be given monetary value. Williams v. Riddle, 145 Ky. 459, 140 S.W. 661 (1911)
A Plaintiff’s loss of reputation is not enough by itself, and emotional distress is not considered special harm even if it causes physical illness. However, once special harm is proven, a plaintiff can collect on damages for emotional distress as well.
The plaintiff also must show that the harm was caused by the defamation and came about because of a reaction by or the behavior of someone other than the defamer and the defamed to the defamatory publication.
The specific differences between libel and slander and what must be proven in a cause of action can be confusing. The law also continues to evolve as the Supreme Court considers new cases
Identifying your Claim
Defamation claims that fall under any of these rules are actionable even if no special harm results from the publication. However, in each, if special harm does result, the plaintiff may recover those damages as well.
It is difficult, yet critical, that you understand the nature of your potential defamation claim, especially as technology has evolved from radio to television to a wide range of electronic media. State statutes govern the rule which distinguishes libel from slander in radio and television broadcasts. These statutes vary, as does the opinion of the Court. Court decisions have upheld that defamation broadcast by radio and television is libel (Sorenson v. Wood, 123 Neb. 348, 243 N.W. 82 (1932)), have labeled similar defamation claims slander (Kelly v. Hoffman, 137 N.J.L. 695, 61 A.2d 143 (1948)), and have labeled the defamation libel only if there is a script (Charles Parker Co. v. Siler City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955)).