Defamation may seem simple, but when it comes to present day American defamation law, there are five requirements a statement must meet in order to be considered defamatory in court. Though we will cover each element in more depth in the following posts, let’s start with a brief overview.
First, the statement at issue must be false. Because the First Amendment’s protection of the right to freedom of speech is fundamental to American democracy, a true statement cannot be considered defamatory no matter how offensive or injurious.
Second, the statement must be published. Though there are various ways for a statement to qualify as being “published,” this element essentially requires that the statement reach at least one third party individual.
Third, the statement must be considered to be “of and concerning” the plaintiff. This element can get tricky, and context becomes key. The jury ultimately determines whether or not they find statements to be of and concerning the plaintiff, but past precedents are available to help guide their determination.
Fourth, the statement must be harmful—that is, the plaintiff must show that they were actually damaged by the statement. Some injuries, such as financial harm, are relatively easy to prove. Others, like a person’s reputation, become more subjective.
Lastly, the plaintiff must prove that the defendant is at fault for defaming him or her. Even if a statement is deemed defamatory on all other grounds, the accused can only be found guilty if they are actually responsible for the defamation.
Next week, we’ll take a deeper dive into each of these elements.
Jon Pfeiffer is an experienced entertainment and copyright trial attorney practicing in Santa Monica. Jon is also an adjunct professor at Pepperdine University in Malibu, California where he teaches Media Law. COM 570 covers First Amendment issues as well as copyright, defamation and privacy.