Defamation

Most people value their reputation because it is easily tarnished.  Defamation laws are designed to protect it.   Why is it then that defamation suits are so hard to bring?

These are the topics I hear people talking about. To clear up  misconceptions about these issues, I decided to explain what defamation really means:


Definition

Defamation is an act of communication, which causes someone to suffer a damaged reputation. Defamation can be written (libel) or spoken (slander).

Elements

In order to bring an action for defamation in court, there must be: 

(1) A communication to one other than the person defamed; 

(2) A false statement of fact concerning the person defamed; and 

(3) Harm to one's reputation.

Other elements of defamation sometimes include intent. However, defamatory statement does not have to be made intentionally.  A careless (negligent) act of making a false statement that is harmful to another sometimes may be enough.  The key is there must be damage to reputation, respect, goodwill or confidence in which the victim is held in the eyes of others.

Defenses

There are a number of defenses to defamation. The most important and absolute defense to an action for defamation is the "truth”. 

Another defense recognized against defamation is "opinion".  For example, if the person making a negative statement is expressing an opinion as opposed to fact, the statement may not support a cause of action for defamation. Opinions on matters of public concern that do not contain or imply a provable factual assertion are protected by the First Amendment freedom of speech. New York Times v. Sullivan, 376 U.S. 254, 264 (1964). 

Costs of lawsuit

Filing an action for defamation is not always a good idea. While someone whose name is disparaged by lies has every right to feel angry, the act of filing a lawsuit for defamation is likely to create a greater audience for the false statement. For a public person, a loss in a defamation lawsuit is likely to be public and will only make people conclude that the allegations were true. 

Furthermore, there are always monetary and emotional costs associated with filing any lawsuit. In connection with a defamation suit, the emotional cost involved may be even higher because this suit is associated with the loss of social standing. There may also be hidden costs, such as business interruption.  

In practice

A suit for defamation may last years and cost thousands of dollars in legal fees. These costs deter most people from filing suits for defamation.  In practice, defamation law is a luxury of the rich, but rarely helps ordinary people whose reputation is attacked.

That said, ordinary people can easily fall victims to defamation suits if they get into the habit of making disparaging opinions about the rich and powerful.

How to avoid suits for defamation

In order to avoid suits for defamation, be sure that you stay away from stating opinions and stick with facts.  For instance, instead of saying that a product is defective, state that it failed to perform according to specifications. Instead of saying that someone is corrupt, state facts behind this opinion and let your audience make their own conclusions.  If you absolutely must use opinions, back them up with facts and references.

Conclusion

Although the law of defamation is supposed to protect people, in practice, it may hinder their freedom of speech. Thus, saying less may be more.