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When I first started law school for some reason defamation was one of those tort sections that I just couldn’t grasp.  It wasn’t really hard and I’m not sure if it was because I didn’t care about it or it wasn’t sinking in but I just never really “got it”.  I decided I wasn’t going to be sunk and risk not passing the Baby Bar due to defamation so I buckled down and figured it out.

The main thing about defamation is that it is an element driven cause of action. In general, if any of the elements are missing, there is no defamation.  Defamation is a harm against a living person’s reputation.  A person’s reputation dies with them so you cannot defame a deceased person.

There are two kinds of defamation.  The common law section which contains the first 4 elements and then the Constitutional version which adds an additional 2 elements to the prima facie case.

The elements of any defamation case are:

  1. A false defamatory statement
  2. Of and concerning the plaintiff
  3. Published to a third party
  4. Damage to reputation of the plaintiff

When the defamation concerns a public figure or a matter of public concern, two additional elements are required for proof

  1. Falsity of the statement
  2. Fault on the part of the defendant

A statement is defamatory when a persons reputation is negatively affected. When a statement is not clearly defamatory (defamation per quad), the plaintiff may use inducement and innuendo to help clarify.  Inducement refers to additional information that helps to support or clarify the defamatory statement.  Innuendo is the meaning that the 3rd party will infer based on the inducement.

Of and concerning the plaintiff means that anyone who heard or read the defamatory statement would understand that the plaintiff was the object of the defamation.

Publication means that someone other than the plaintiff must have been told of or read the statement. The one thing to look for here is the intent to share or spread the statement however, even if the statement was negligently shared, it still counts.  Often times this fact pattern is presented in essays when there is something published in a newspaper, journal, or school publication.

Damages Are the Meat of a Defamation Case

Damages come in the form of special and general. Special damages are money that may be awarded if it can be proved that the plaintiff suffered actual loses as a result of the defamatory statement.  If that can be done, then general damages are presumed.  General damages are pain, suffering and/or emotional distress.

The first step is that the statement be categorized as either slander (spoken) or libel (written). Libel is more permanent and may be further or continually dispersed, therefore libel per se (libel on its face) is automatically granted special damages and as a result general damages.  If the statement is slander (spoken) then special damages must be proven. However if the statement falls into a special category, the statement become slander per se and special damages will be presumed.  The 4 special categories which make a slander statement slander per se fall into: 1.  A woman is unchaste 2. The plaintiff has a loathsome disease 3. Plaintiff was accused of a crime or criminal conduct or  4. The statement affects the plaintiff professional standing or reputation within his profession.


When the plaintiff is a public person or the defamation is regarding a matter of public concern the First Amendment of the Constitution comes into play and then the plaintiff has two additional elements to prove.

  1. The statement is false.
  2. Actual Malice


Actual Malice

Actual malice is defined as knowing the statement was false or not caring if statement was correct. 

If the plaintiff is a public person/official then they must prove actual malice sometimes called NY Malice.

If the plaintiff is a public concern but involves a private person and actual malice is proved, then damages for libel/slander are presumed.  If actual malice is not available, negligence will suffice but damages must be proved.

There are four defenses to defamation.  Consent, truth, absolute and qualified privileges.

Consent (complete defense): Voluntary, informed with legal capacity may suffice to satisfy this requirement.

Truth (complete defense):  Self explanatory.

Absolute privilege: Certain communications are protected regardless of the context or veracity. These privileges cover executive statements, legislative proceedings, judicial proceeding as well as communications between spouses.

Qualified privilege: A qualified privilege is one that is granted due to the relationship or intention of the parties.  If that privilege is not respected or exceeds the scope of the intent, was made with hatred, malice, etc. it can be lost.  Sample privileges include statements made in self-defense or to warn others about a harm or danger, published reviews which fall into the fair criticism category and certain statements made by government officials.

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