Recently, there have been numerous lawsuits in the news involving defamation. So, what exactly is defamation and how does a defamation lawsuit work?
An Overview of Defamation
Defamation is an untrue statement about a person that harms that person’s reputation. There are two categories of defamation: libel and slander. Libel is written defamation and slander is spoken defamation. Throughout history, libel has been treated more seriously than slander because it had the ability to reach a large population in a short period of time. A traditional example of libel is a newspaper advertisement saying that a politician is corrupt.
Historically, it has been extremely hard for plaintiffs to prevail in defamatory actions for both libel and slander because of the right to free speech under the First Amendment. A defamation case will only be successful if it correctly balances the state’s interest in providing a remedy to the plaintiff and the government’s interest in providing free speech.
Elements of Defamation
A plaintiff will be successful in a defamation if they can establish the elements of defamation. At common law, there are four elements to defamation: 1) a defamatory statement of fact, 2) culpably published by the defendant, 3) the defendant acted with fault as to falsity of the statement, and 4) the plaintiff suffered damages. Illinois uses the four common law elements to defamation, but also has its own statute, the Slander and Libel Act, that controls defamation claims. 740 ILCS 145/1.
- Defamatory Statement of Fact
A defamatory statement of fact is a false statement that tends to harm the plaintiff’s reputation and diminish the respect, goodwill, confidence, or esteem to which the plaintiff is held by members in the community. In order to satisfy this element, the statement cannot be true or substantially true.
- Culpably Published by the Defendant
A defamatory statement is culpably published by the defendant when it is negligently, recklessly, or intentionally communicated to a third person who understands. Under the law, it is not considered published if the defamatory statement is communicated to the plaintiff only.
- Fault as to Falsity
The fault as to falsity element is the hardest element for a plaintiff to establish in a defamation case. This element provides the most free speech protections to the person uttering the false statement. Under this element, different types of plaintiffs and different types of concern have different standards of proof. If a plaintiff is a public official or public figure and the matter of concern is a public concern, then that plaintiff must prove actual malice – knowledge of the falsity of the statement or a reckless disregard for the truth. If a plaintiff is a private person and the matter of concern is a public concern, there is no set standard of proof, but this type of plaintiff must at least prove negligence as to the falsity of the statement and must prove actual malice to recover punitive damages. If a plaintiff is a private person and the matter of concern is a private concern, there is no set standard of proof, but this type of plaintiff must at least prove negligence as to the falsity of the statement.
The last element required in a defamation claim is the damages claim. Under this element, a plaintiff must prove that the defamatory statement caused a loss in some way. Types of damages may include loss of business/job, damage to reputation, and emotional distress. A plaintiff may obtain punitive damages (damages meant to punish the defendant) only in cases where the plaintiff proves actual malice.
There are many nuances to defamation claims, which require a skilled and knowledgeable attorney. If you or a loved one has been injured by a false, defamatory statement, contact the Naperville personal injury attorneys at the law firm of John J. Malm & Associates to learn more about how you may be entitled to receive compensation.