Defamation can be typically be categorized as either the tort of libel or slander. Libel constitutes defamation in the form of written or printed words. Slander constitutes defamation by spoken words or gestures. However, the manner in which defamatory material is distributed, as well as the character of the presentation, can influence whether the material is considered libel or slander.
The most common method of publishing libelous material is newspapers, books and magazines, or on-line versions of each of these, as well as other on-line sources. This includes pictures and caricatures, or anything else that is embodied in physical form.
If the defamatory material is spoken or distributed by way of a gesture, such as a nod of the head, generally it is slander. However, courts and statutes in some states have designated defamation by broadcast over radio or television as libel, even if the material is not read from a manuscript. This is because the wide dissemination of such a broadcast can potentially cause the same harm as written material. This rule may vary from state to state.
Furthermore, a defamatory statement that is delivered orally by reading a defamatory writing aloud, or by dictating with the intention that the statement be written, is considered libel, not slander, although the audience received the statement orally. This is supported in several Court decisions, including McCoombs v. Tuttle, 5 Blackf. (Ind.) 431 (1840), Bander v. Metropolitan Life Ins. Co., 313 Mass. 337, 47 N.E.2d 595 (1943) and Garren v. Southland Corp., 237 Ga. 484, 228 S.E.2d 870 (1976).
The distinction is important when a plaintiff considers filing a claim of defamation because a successful slander lawsuit may require proof of special damages where libel does not.
Elements, Damages and Defenses of Libel and Slander
Libel and slander both fall under a claim of defamation, which requires that a plaintiff prove:
For any defamation claim, the plaintiff must be identifiable and the material must be such that a reasonable person would view it as defamatory.
In any defamation claim, truth is an absolute defense. A defendant may also claim the material was privileged, meaning the statements were made in a court of law or about public figures in the process of engaging in official duties.
The difference between these two types of defamation lies in what must be proven in a court of law. The plaintiff in a libel suit may collect general damages by proving simply that the statement was defamatory. In a slander suit, the plaintiff must prove special damages—specific monetary losses as a direct result of the defamatory statement—unless the defamation is in the “per se” category. Defamation per se includes:
In these cases, defamation and damages are assumed and no proof is needed. A libel claim may also be considered per se.
The distinction between libel and slander, as well as consideration of defamation per se, is addressed in Grein v. La Poma, 54 Wash.2d 844, 340 P.2d 766 (1959).
Identifying your Claim
It is difficult, yet critical, that you understand the nature of your potential defamation claim, especially as technology has evolved from radio to television to a wide range of electronic media. State statutes govern the rule which distinguishes libel from slander in radio and television broadcasts. These statutes vary, as does the opinion of the Court. Court decisions have upheld that defamation broadcast by radio and television is libel (Sorenson v. Wood, 123 Neb. 348, 243 N.W. 82 (1932)), have labeled similar defamation claims slander (Kelly v. Hoffman, 137 N.J.L. 695, 61 A.2d 143 (1948)), and have labeled the defamation libel only if there is a script (Charles Parker Co. v. Siler City Crystal Co., 142 Conn. 605, 116 A.2d 440 (1955)).
The experienced attorneys at Meyers Roman Friedberg & Lewis, LPA can help you determine how the law applies to your defamation situation. Call them today at (216) 831-0042.