What Are the Two Types of Defamation? Libel vs. Slander Explained Featured Image

What Are the Two Types of Defamation? Libel vs. Slander Explained

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    There are two main types of defamation: libel and slander. Libel is a false statement that is written, published, printed, or preserved in physical or digital form (such as a newspaper or a website). Slander is a false statement that is verbally communicated to a third party.

    At Minc Law, we have filed hundreds of successful defamation lawsuits across 26 states and five countries. We have also removed more than 25,000 pieces of defamatory content from the web. In short, we are intimately familiar with defamation in all its forms.

    This post gives an overview of the main types of defamation, including libel and slander. We also discuss the similarities and differences between online and print defamation. Finally, we provide resources for taking legal action against a defamer, if you become a victim of defamation yourself.

    How Many Types of Defamation Are There? Libel vs. Slander

    Defamation, commonly referred to as defamation of character, is any false statement made to a third party that damages another person or entity’s reputation. A plaintiff must generally be able to prove the following four elements to succeed in a defamation claim:

    • A false statement was made about the plaintiff,
    • It was communicated to a third party,
    • The statement was made with at least a negligent level of intent, and
    • It caused damage to the plaintiff’s reputation.

    Generally, defamation takes the form of either libel or slander, both defined below.

    What is the Definition of Libel?

    Libel is a published false statement that damages a person or entity’s reputation. In other words, libel is written defamation.

    To help you remember the definition of libel, it may be helpful to know that libel comes from the Latin word libellus, which means “book.” So when you think of libel, think of literature (they both start with an L).

    What is the Definition of Slander?

    Slander is the action or crime of making a false, spoken statement that damages a person or entity’s reputation.

    While libel is written, slander is defamation that is spoken. An easy way to remember this definition is that “slander” and “spoken” both begin with an S.

    Is Defamation Civil or Criminal?

    Defamation is typically a civil charge; however, 13 states have criminal defamation laws on their books. In these states, defamers can face criminal consequences—such as hefty fines and, in extreme cases, jail time.

    Libel vs. Slander Per Se

    One crucial element in proving a defamation claim is demonstrating that the statement(s) caused damage to the victim’s reputation.

    Defamation per se is a legal doctrine that classifies certain types of statements as so inherently harmful, that it is “presumed” the plaintiff suffered damages as a result of the statement. Defamation per se is also commonly referred to as slander per se and libel per se, depending on whether the statement was written or spoken.

    While state definitions differ, most U.S. states consider statements as defamatory per se if they claim that the plaintiff:

    • Committed a punishable crime or a crime of moral turpitude;
    • Suffers from a loathsome disease such as a sexually transmitted disease or leprosy;
    • Has acted improperly or unethically in the course of their trade, profession, business, or occupation; or
    • Has engaged in sexual misconduct and is unchaste (this claim is typically made about a female plaintiff).

    Of course, classifying the statement as defamation per se does not mean the plaintiff does not have to prove damages. To receive more than the minimal damage award, plaintiffs still must provide evidence to show how much harm they suffered.

    Minc Law Tip: Damages are an umbrella term for any type of monetary compensation awarded to a victim in a civil case. In defamation cases, most plaintiffs seek to recover actual damages in the form of “special,” “general,” and/or “punitive” damages.

    How Do Libel & Slander Affect the Reputation of a Person or Business?

    If an individual publishes or communicates a false statement to others about you or your business, that statement—regardless of whether it is true—might cause your customers to take their business elsewhere.

    Consider the following scenario: you see a libelous online review or hear a slanderous statement spoken about a business. It would make you wonder if you should choose that business or look elsewhere, right? Most consumers behave the same way. The importance of online reviews is now more powerful than word-of-mouth recommendations by friends and family.

    For example, an estimated 90% of consumers stated that a positive online review played a significant role in their purchasing decision.

    Even if you do not own a business, libel and slander can still affect your personal and professional reputation. An untrue statement about you could cause your employer to question if you should remain employed, preclude you from future job opportunities, and lead to shame, embarrassment, and even physical symptoms (such as depression and anxiety).

    Business Defamation

    Like individuals, businesses are subject to harm from defamation. They can therefore seek legal remedies under defamation laws. Common business defamation claims include injurious falsehood and unfair or deceptive trade practices.

    Injurious falsehood, also known as business disparagement or commercial disparagement, is defined as a false statement about the plaintiff’s commercial property that causes harm to the plaintiff. This definition is similar to that of defamation itself, except that injurious falsehood applies to commercial and economic damage rather than reputational harm.

    Unfair and deceptive trade practices, or trade libel, is defined as a false statement to a third party that causes harm to a business’s service or product (as opposed to their reputation or property).

    Online Defamation vs. Defamation in Print

    Defamation in print is what it sounds like: a defamatory statement made in physical print media, such as a printed newspaper or magazine.

    But in today’s increasingly digitized society, it is no surprise that the majority of defamation litigation is concerned with defamatory statements published online. These statements, usually made on social media sites, online news sites, and forums, are referred to as online defamation or internet defamation.

    How Do Defamation Cases Differ When Proving Online Versus Print Defamation?

    The laws of defamation are the same whether a story is printed in a news article or on a personal blog. Therefore, internet defamation cases look largely similar to print defamation cases.

    The major challenges when litigating an online defamation case are related to identifying the publisher and proving damages caused by the defamatory statement(s).

    Identifying the Publisher

    A defamer can publish statements anonymously whether using a print or digital medium. However, the types of evidence required to prove the identity of the publisher are very different in either case.

    For print defamation, the legal claim is dependent on physical evidence and witness investigation. With online defamation, there is no straightforward paper trail. Plaintiffs often have the best success subpoenaing websites and internet service providers to look for:

    • The digital footprint left by the author,
    • Their email address,
    • Their IP address, and
    • Other account registration information.

    Proving Damages

    Online defamation is much more prolific, can be much more damaging, and is much harder to prove. Defamatory statements can go viral and can stay online forever. Preserving and documenting that evidence—and understanding it—can be more difficult than when dealing with a print defamation case.

    In print defamation cases, it is relatively easy to determine how many people have seen the defamatory material. For instance, the plaintiff may find out how many issues of the newspaper were sold.

    But in online defamation cases, it is much harder to prove how many people have read the published statement. It can be very difficult to quantify defamation damages and demonstrate a connection to the harm the plaintiff suffered.

    What Factors Influence How Easy it is to Prove Online Versus Print Defamation?

    Generally, the factors determining the difficulty of proving defamation are the same whether the statement(s) were made online or in print. When bringing a defamation claim, it is helpful to consider the following questions:

    Is the Speech Potentially Subject to a Defense Like Opinion or Privilege?

    For example, the defense of privilege enables an individual in a certain role to make a statement regardless of its contents. Such roles might include a public official in judicial proceedings, or an employer writing a reference letter.

    Do You Know Who Published the Statement(s)?

    Needing to identify an anonymous poster and/or publisher makes a defamation case more difficult.

    Can You Prove Your Case?

    It is crucial to have enough evidence to prove your damages. Find out whether the information in the statement is actually negative, damaging, and defamatory in nature.

    Also, make sure you can show that the defendant made the statement(s) negligently or with actual malice or reckless disregard.

    Legal Options to Protect Yourself From Defamation

    If your online reputation has been attacked, it can be daunting—not to mention time-consuming—to try to handle the situation alone. There are several options to help you remove defamatory content and protect yourself from future attacks.

    What Content Removal Services Are Available For You to Protect Yourself Against Defamation?

    Internet defamation attorneys are well-versed in defamation law and the legal options available. Experienced internet defamation attorneys can remove damaging content in a fast, cost-effective manner. Defamation attorneys can also help obtain injunctive relief to prevent the subsequent posting of defamatory material.

    There are also content removal companies that offer guaranteed removal or a money-back guarantee. While some of these companies are effective and reputable, many use questionable methods to take down the content you pay them to remove. These methods might ultimately cause more harm to you—like getting you banned from social media platforms.

    If you are considering using a content removal company, use extreme caution and be sure to do your research before hiring them.

    Are they transparent about the methods they use to remove content? Is there a way to speak to a real person (for example, is there a phone number listed on their website)? If not, you may want to look elsewhere.

    What Reputation Management Services Are Available for You to Protect Yourself Against Defamation?

    If you are the target of defamation, you will likely want to protect yourself from future attacks and monitor your online reputation. In that case, you may want to look into online reputation management (ORM) or digital risk protection (DRP).

    Online reputation management is the process of improving and protecting your online presence. ORM services help you create and boost positive content, like blogs or social media posts, to cultivate your reputation. They also generate alerts for keywords or references to your identity, either as an individual or a business (or both). And finally, they assist in removing or suppressing negative content as it appears.

    Digital risk protection uses technology and industry experience to track data sources for threats against your digital reputation. DRP is a comprehensive risk-management strategy that evaluates your digital profile. It identifies weak points and monitors data sources for threats on an ongoing basis, like:

    • Social media,
    • Forums,
    • Blogs, and
    • Dark corners of the internet.

    Digital risk protection services not only identify digital threats but also eliminate them and monitor the internet for subsequent threats.

    What Legal Action Can You Take to Protect Yourself Against Defamation?

    Send a Cease & Desist Letter

    Cease and desist letters can be effective tools for resolving online defamation, but only in certain cases. If you know the identity of the publisher, you may be able to convince them to remove the post with a strongly worded letter tailored to your specific situation.

    While a cease and desist letter can be effective, keep in mind that the recipient may see it as a bluff. They may assume you are not prepared to take any further legal action. Be sure to have a follow-up plan in mind if the recipient ignores your letter.

    File a Defamation Lawsuit

    Pursuing litigation is not always the right choice for everyone, but it can be very effective in the appropriate situations. If you believe you have a valid claim, seek out an experienced defamation attorney who can help you file a defamation lawsuit.

    Filing a defamation lawsuit can enable targets of defamation to identify anonymous posters, procure damages for harm suffered, and obtain equitable relief (ex. Injunctions to prevent the future posting of defamatory content).

    Seek an Alternative to Litigation

    A lawsuit is not always required to remove defamatory content from the web. You may also be able to seek alternatives to litigation, such as:

    • Mediation,
    • Arbitration,
    • Reporting a Terms of Service violation, or
    • Negotiating with the owners of the website in question.

    If the defamation was published in an online news article, you may also be able to make an editorial request for removal of that article.

    Send a Legal Removal Request

    The Digital Millennium Copyright Act of 1998 (DMCA) empowers individuals to request the removal of online content that infringes on their copyright. If the unwanted online content includes your images or any copyrighted material, you may be able to have it removed using a DMCA takedown notice

    A DMCA takedown notice is a legal request that puts a website or person on notice that they are infringing your copyright and requests the removal of that infringing material.

    Similarly, if the content violates abuse laws, such as child pornography, you may be able to have it removed by reporting it directly to the website and contacting law enforcement. Sexual abuse images and child pornography may also be reported to Google via their revenge porn portal.

    When to Seek Legal Help With a Defamation Suit

    In some cases, filing a defamation lawsuit is the only way to resolve a defamation issue. When filing a defamation lawsuit, there are certain considerations to keep in mind.

    These considerations include taking the proper steps to file a lawsuit, determining that your claim is valid in the first place, and preparing yourself for potential defenses to defamation that may arise. We take a look at each below.

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    What is Necessary to File a Lawsuit for Defamation?

    If you intend to file a defamation lawsuit, it is essential to learn the proper steps to prevent roadblocks and headaches later. In most states, the following general guidelines make up the best practices for filing a defamation lawsuit correctly.

    1. Have a Valid Defamation Claim

    Are the necessary elements we mentioned above present to bring a claim of libel or slander in court? To summarize, the defendant must have made a false statement of fact about you to a third party with at least a negligent level of intent. That statement, in turn, must have caused damage to your reputation.

    2. Retain an Experienced Defamation Attorney

    If your claim of defamation is a valid one, you should find an experienced defamation lawsuit attorney to handle your case. They will be able to determine the best course of action and, if appropriate, prepare the legal complaint and file your slander or libel suit for you.

    3. Identify Any Defenses That May Be Presented & Have a Plan to Overcome Those Defenses

    Next, you and your defamation lawyer should make a plan to overcome any defenses to defamation that the defendant may be able to claim. Truth, opinion, privilege, fair comment, and the statute of limitations are just a few of the most common defenses to defamation.

    Minc Law Defamation Lawsuit Tip: The statute of limitations is the legal timeframe between the moment the defamatory statement was made and when the plaintiff must file a lawsuit if they plan to file one. The statute of limitations depends on several key factors, including jurisdiction, other potential legal claims, and any legal exceptions that may apply. For more information, be sure to read our article, “What is the Statute of Limitations for My Defamation Claim?

    4. Identify the Best Court in Which to File a Defamation Lawsuit

    Determining which court is the correct choice is more complicated than it may seem. The applicable court for your case generally depends on several factors, including where you live, where the defendant lives or operates, and where you experienced damages due to the defamation.

    5. Gather All Evidence

    Without proof of the defamatory statement and the damages you suffered, your case will not go far. Make sure to take screenshots and save web pages, back up any relevant emails, and print out applicable documents.

    If you do not have access to certain evidence, your attorney may be able to help you send out preservation notices.

    6. Draft the Complaint

    A complaint is a formal legal document that initiates the lawsuit. Your attorney should help you draft a complaint that names the parties involved, lays out all the legal claims and arguments, and makes a request for relief and damages.

    7. Serve the Lawsuit to the Defendant After Filing in Court

    After filing the complaint with the court, the plaintiff must also serve notice in writing to the defendant within a certain number of days. If the defendant is not notified properly, the case may be dismissed.

    What Factors Determine if You Have a Viable Defamation Claim?

    To succeed in bringing a claim of defamation, you will need to demonstrate that all of the necessary elements are present in your case.

    First, the defendant must have published a false statement about you. Here, “published” means communicating it to a third party in some form, whether written or spoken.

    You must also be able to prove that the statement was damaging to your reputation, and it must have been made with at least a negligent level of intent.

    What Types of Problems Can Defamation Attorneys Help With?

    The field of defamation and libel law is complex, ever-changing, and never easy to navigate alone. An experienced internet defamation attorney can assist with many tasks and problems surrounding defamation. Some of the most common include:

    • Filing a defamation lawsuit,
    • Identifying anonymous posters,
    • Subpoenaing websites,
    • Compiling evidence to prove damages,
    • Stopping any related harassment/extortion, and
    • Flagging or reporting abusive content via Google and other internet search engines.

    Work With Experienced Internet Defamation Attorneys to Remove & Stop All Types of Defamatory Attacks

    Malicious and defamatory attacks online can happen to anyone, and their effects can be far-reaching. No matter the type or medium, becoming the victim of defamation is always a devastating and exhausting experience.

    Whether you have experienced the consequences of defamation firsthand or you want to protect yourself from potential defamatory attacks, Minc Law can help. Defamation law is at the core of what we do, and we have helped thousands of clients just like you remove unwanted content, pursue litigation, and protect their online reputations into the future.

    ★★★★★

    “I had a positive, results drive experience with Kaelynn Vargo and Dorrian Horsey. From my initial contact with Kaelynn through working with Dorrian on my internet matter, both demonstrated enthusiasm, energy, and a sense of purpose in assisting me in resolving my issue. I was impressed with their prompt response time and informative status updates. Both were professional, approachable, organized, and respectful. I would highly recommend them to anyone seeking premium services.”

    ML, Apr 8, 2021

    If you are a victim of defamation and want to learn more about options for your unique situation, reach out today to schedule your free, initial no-obligation consultation by contacting a chat representative, filling out our contact form, or calling us at (216) 373-7706.

    Contact Minc Law

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