The heart of slander and libel, "Defamation"

[Alan K]

This post is made to delve into and explain the law stated in the prior post on slander and libel and I would suggest reading the prior post first.

My last post gave you an overview of the laws of Slander and Libel and what we need to know is at least a working knowledge of the conduct which creates the actionable categories, and this is called “Defamation”.

To establish that the words used were defamatory, you must prove that they were such as would hold the plaintiff up to contempt, hatred scorn, or ridicule or would tend to impair his standing in the community. The plaintiff must further prove that the words are such as would tend to discredit him in the minds of any considerable or respectable class in the community. The question whether a publication is defamatory or not, being dependant upon the effect produced upon the public or a considerable part of it, is one particularly fit for trial by jury, and the action will not be removed from their consideration, and a court should not award a summary judgment (to dismiss) unless it appears that the statement complained of is not reasonably capable of being understood in a defamatory sense to the discredit of the plaintiff, as required, in the minds of the public.

To maintain an action of slander one must establish that the words spoken were actionable per se, that is, that they charged the plaintiff with a crime, or state that he is suffering from certain diseases, or prejudice him in his profession or business, or impute an unfitness for or misconduct in his office or employment. Interestingly enough an accusation purporting to rest on hearsay is none the less defamatory. (An example might be “Well I can tell that I heard from a good source that Joe Goodfella is dipping into the till at work, and this guy never lies”)

Where the slanderous words spoken are actionable per se, it is not essential that the plaintiff prove special damages to establish a prima facie case. (Special Damages meaning itemized losses of income and other special circumstances other than loss of face)

Where the action is for libel, as distinguished from slander, it may be actionable per se without the proof of special damages, even though the defamatory words do not impute a crime, or bad character of the plaintiff, or an injury to him in his office or business.

Where the defamatory communication consists of a statement or an opinion, it is actionable only if the statement implies the allegation of undisclosed defamatory facts as the basis for his opinion.

The next segment can cause confusion and is only meant to clarify, so lets put on our best meditation faces:

There is a distinction between “pure” opinion (one based on disclosed or assumed nondefamatory facts) and “mixed” opinion (one apparently based on facts that have not been stated or assumed to exist). A mixed opinion is actionable if the plaintiff can demonstrate that it is reasonably understood as implying the assertion of the existence of the undisclosed facts about the plaintiff that must be defamatory in order to justify the opinion.

Where a statement unambiguously constitutes either a fact or opinion, the distinction is a matter of law for the court to determine. Where the statement could have been understood by the average reader in either sense, the issue must be left to the jury’s determination.

More to come on the next subject of defamation, “Innuendos”, and words with two or more meanings.

Alan