Defamation and Protection of a Good Reputation
Protecting a Good Reputation
The law of defamation exists to provide some protection to a person’s deserved good reputation. What is a person’s reputation? It is the esteem to which the person is held or regarded by others. A person who does good and does not cause harm to others tends to develop a good reputation. It can be beneficial to have a good reputation. Others may reasonably rely on a person’s good reputation in dealing with that person.
Unfortunately, having a good reputation is not a guarantee of a person’s goodness. Some people who have a good reputation do not deserve it. They do not deserve to have a good reputation because, although it is not generally known, they have not done good, they have caused harm to others, or, even though they once did good and did not cause harm to others, the opposite is now the case. Although it might be understandable to tell the truth about those who have an undeserved good reputation, some people make false statements about persons who have a deserved good reputation.
Defamation: Libel and Slander
The law of defamation consists of two torts: libel and slander. Both libel and slander involve the making of a false statement about a person to others, thereby causing harm to the person’s reputation. In other words, both libel and slander involve lies about a person and damage to the person’s reputation as a result. If, for example, someone says to others that you are a crook, and you are not a crook, the false statement, if it harms your deserved good reputation, is defamatory.
Defamation has the following basic elements: (1) making a false statement; (2) about a person; (3) to others; and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. The person who made the statement has to have made it with a known or reckless disregard of the truth, which is called actual malice. In some states, the elements of defamation must be proved by clear and convincing evidence.
Libel is the making of a defamatory statement in writing or some other permanent form, such as a newspaper, web site, or scripted radio or television broadcast. Slander is the making of a defamatory statement orally or in some other non-permanent form, such as in conversation or by gesture. The main distinction between libel and slander is a matter of evidence. In a libel case, the permanent record, if not lost or misplaced, allows the judge and/or jury to review exactly was said. In a slander case, the judge and/or jury must rely on witness testimony to determine what, if anything, was said.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.