Most people are familiar with the right to free speech, but certain things, like defamation, can place limits on the words you speak or publish.

Defamation law allows people to protect their reputations from unfair attacks; if someone’s been defamed, they can sue the defamer and demand a retraction or public apology. It’s a limitation to freedom of expression—a highly valued American right—which makes it quite challenging to pursue in court.

The judicial interpretation of the first amendment makes the USA a defendant friendly nation when it comes to defamation, whereas European and other common law countries would be seen as plaintiff friendly. That means, when it comes to defamation allegations in America, defendants are presumed innocent until proven guilty.

So, what exactly is defamation? It occurs when someone’s comments damage the reputation of another. To be considered defamatory, the comments must be false or malicious (meaning the speaker’s words were untrue or intentionally harmful), as truth is an absolute defense to defamation.

In this post, learn about the two types of defamation and what happens in a defamation lawsuit.

Defining Defamation

There are two ways defamation can occur:

  1. Libel is when defamatory comments are published in writing in the public domain, like in a news article or on a social networking site.
  2. Slander is when defamatory comments are spoken in public, such as stories told at a social gathering or a video blog posted online.

The definitions for libel and slander may vary between jurisdictions. Be sure to check your local laws if you’re unsure whether a statement is defamatory or not.

Remember, the law protects reputation—not hurt feelings. So, if someone says something offensive directly to you, but not to anyone else, then you cannot claim defamation.

Likewise, opinions aren’t considered defamatory because they are subjective statements. However, the statement must obviously be an opinion to avoid alleged defamation. An assertion of facts dressed up as an opinion could be read as true and cause the same reputational damage. This would be up to the court to interpret.

Defamation Lawsuits

Like most legal disputes, defamation lawsuits can be lengthy and expensive; so, most cases aren’t brought to the courts.

Often, the first step in any defamation case is to send a Cease and Desist Letter. Next, a person might ask for the statements to be retracted and for a public apology, or else threaten a lawsuit.

If someone does choose to file a lawsuit, they must make the defamation claim within the legal time limit, which can differ from state to state, but generally ranges between one and two years from the date the statement was made.

In American law, it’s up to the plaintiff to prove the statements were false and that they caused material harm (a tangible loss or injury). There are two challenges that come with this burden of proof:

  1. It can be difficult to prove a statement was false
  2. You must endure the damages caused by the statement before you’re able to take action against it

In the end, if libel or slander is proven in civil court, the plaintiff can be awarded damages (such as money) for the loss of reputation or earnings caused by the defamation.

The Power of Words

Words hold a considerable amount of power—a few small sentences have the potential to make or break a person’s entire reputation.

Defamation law is a balancing act between two competing rights: a person’s right to protect their reputation and the right to free expression.

In one case, you may have to prove the damages done by the defamation; in another, you may have to prove the comments were justifiable. In either case, pursuing a defamation lawsuit is likely to be a long and costly endeavor.

So, before you say anything you may regret, it’s important to understand what constitutes defamation and what consequences may arise if you make a defamatory statement.

Posted by Jasmine Roy

Jasmine has been writing for LawDepot since 2018. She is a writer with a passion for politics, law, and sociology. She's particularly interested in writing about real estate and family law.