What Is Defamation Today?

Civil Litigation Lawyer

A very common misconception people have is the idea that any rumor about them is actionable as defamation. The truth is that few cases actually rise to the standard required by the court to prove defamation and recover damages. Knowing what is and what isn’t defamation is therefore important as people need to know how much protection they have under the first amendment when discussing another person or a business.

Where does defamation come from?

The concept of defamation can be traced back to ancient roman law wherein abusive chanting was treated as a crime and could be punished by death. The law continued to be a criminal action in old English in Germanic law, however, the punishment became less severe with it only being punishable by the cutting of the tongue. At common law, it survived into English modernity not as a criminal action but a civil law action, wherein one could restore their defamed honor in a court of law rather than a duel. 

What is defamation today?

Today, defamation survives in U.S. common law as a specific cause of action wherein the Plaintiff has the burden of proof to show the following: that the Defendant made a false and reputation harming statement, that the Defendant published that statement of fact to a third party, that the Defendant knew the statement was false or acted with reckless disregard of the falsity of that statement, and the statement caused actual damages. The most difficult part of these elements for most people is the statement of fact. Many believe that an opinion is actionable, wherein reality, it must be a statement of fact. The most difficult element to prove is one’s damages as a Plaintiff must show how the statement of fact actually harmed them in an economic way. 

Why should you bring an action for defamation?

Defamation can be extremely damaging to one’s career and business. It is now, with the proliferation of the internet, easier than ever for one to simply post a false review and destroy a business’s reputation forever. A civil law and defamation attorney, can advise whether a defamatory statement is protected speech or actionable defamation. This is an important determination as if you sue someone for speech that is protected under the first amendment, then you could encounter an “Anti-SLAPP” law forcing you to pay the other side’s attorney fees.