Defamation (Libel and Slander)

At one time, the field of defamation was separated into libel (written) and slander (oral). This separation assumed that a more permanent record of the defamation had the potential for greater harm. But with new technologies such as radio and television, with the potential for the spoken word reaching millions of people, and with audio and video recordings being as least semipermanent, the reasons for the distinction have vanished.

The key component of defamation is a statement or inference of fact that has the tendency either to harm the plaintiff's reputation and lower the plaintiff in the esteem of the community or to harm the plaintiff's business or organization by deterring people from doing business with them. The plaintiff can be an individual, a corporation (either for profit or nonprofit), or some other organization. However, in the United States, the government cannot sue for defamation.

The issue of defamation is important for public relation practitioners because it is the “most common, and perhaps the most serious, legal problem facing the mass communications industry…. Nearly every press release, news article, or advertisement holds the potential for a libel suit” (Moore, Farrar, & Collins, 1998, pp. 188–189). As noted by a number of commentators, defamation law is very frustrating and erratic. The lines are not very distinct and do not adequately protect either media or communication professionals from the costs of defending themselves in law suits, nor does the law provide adequate protection for the plaintiff who has been defamed. There have been several suggestions for improvement, such as the American Bar Association's Uniform Correction or Clarification of Defamation Act and the Annenberg Washington Program's Libel Reform Act, but they have not been adopted.

The elements that go into making up a defamation suit are publication, identification, defamation, and fault. The defamatory statement has to be “published” to at least one person other than the plaintiff and the defendant. The scope of the publishing goes to the issue of harm and damages. The plaintiff then has to be identified in some way; otherwise the plaintiff has not been harmed. The identification does not have to be by name if there are surrounding facts that would enable the community to identify the plaintiff. The statement also has to be capable of decreasing the reputation of the plaintiff in the estimation of a relevant community. And since 1964 in New York Times v. Sullivan (public officials), and 1974 in Gertz v. Robert Welch, Inc. (public figures/private figures), the plaintiff has to prove fault on the part of the defendant. If the plaintiff is a public official or a public figure, either all-purpose (i.e., occupying a position of pervasive influence in society or having a name recognized by the general public) or limited (involved in a limited public controversy), the level of fault that the plaintiff has to prove is actual [Page 249]malice, meaning the defendant acted with knowledge that the statement was false or with reckless disregard of its truth or falsity. If the plaintiff is a private figure not involved in a public controversy, there has to be some level of fault proven, but that level is left up to the individual state courts. It is usually some level of negligence, but it cannot be strict liability, which means that if there is publication, identification, and defamation, fault on the part of the defendant is assumed. Negligence is a much easier burden of proof for the plaintiff to meet than is malice, and often, as a result, defamation cases are decided at the threshold level of the classification of the plaintiff as either public or private.

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