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What Are the Differences Between Defamation, Libel, and Slander?

By Los Angeles Federal Attorney on October 11, 2018

Because our Constitution has a guaranteed right to the freedom of speech, people think they’re free to say whatever they want in whatever forum they want. While this is true to a degree, there are limits on the freedom of speech, and these limits have been well-documented through two centuries of case law.

You have probably heard the example of someone yelling “Fire!” in a crowded theater. Lying about a fire and causing a stampede that could lead to injury is against the law and is not considered protected speech, as such speech poses a clear danger to public safety.

The same principle applies to other types of speech as well. If someone’s words pose a physical danger (such as threats that incite violence) or impinge on another person’s rights, they are not allowed. That is certainly the case with defamation, libel, and slander.

The Definitions of Defamation, Libel, and Slander in California

Defamation is defined as a false statement that is presented as a fact and causes injury to the character of the person to whom it refers. It is important to note in the legal sense that for a statement to qualify as defamation, both standards must be provable. That is, it must be a verifiably false statement, and it must cause discernible harm.

Just because a person lies about you doesn’t mean you can sue them. For instance, if a person lies that you wrote a best-selling novel, this would not qualify as defamation unless it can be shown that you were harmed in some tangible way by the lie. Even an insulting lie, such as saying that you were fat as a child, is not defamation in and of itself.

An example of a lie that could qualify as defamation: Cindy says, “George is embezzling money from the company.” If George gets fired and it turns out that Cindy knew the statement was untrue when she said it, then George would have the opportunity to sue Cindy for defamation, and win damages in a court of law.

Libel is one form of defamation. It is defined as a defamatory statement that is made in writing. You might see examples of libel in news articles or editorials, letters to newspapers, public comments on websites, online reviews, blog posts, Twitter, Reddit, and internet chat rooms or listservers.

Slander is defined as a defamatory statement that is made orally. This could be in a public speech, or it could be made in private to one other person. In the example above, George could be slandered by Cindy speaking before the company as a whole, or going directly to the boss and telling him the slanderous statement about George face-to-face.

What Other Standards Must Be Met for Defamation?

We already outlined two of the key standards that are necessary for a statement to rise to the level of defamation: it must be demonstrably false, and it must cause harm to the person being defamed. But there are other standards that generally must be met for a statement to legally be considered defamation in California.

For example, the defamation must be made to a third party. Speaking directly to the victim in private would not qualify as slander. The statement must be made to someone else, even just one other person.

Another important distinction that must be considered is the difference between opinion and defamation. A person’s opinion cannot be shown to be false. Saying “Mary is a jerk,” is an opinion. So is, “I think George is embezzling money.” Neither of the above statements would likely qualify as defamation.

Another critical element of defamation is the intent of the person making the statement. It must have been made while the perpetrator knew for certain that it was false, or had reckless disregard for whether it was true or not. It should also be noted it is easier to prove defamation towards a private citizen than a public figure.

Are There Defenses to Defamation?

There are two important terms to discuss when thinking about filing a lawsuit for defamation. The first one is SLAPP – short for a “strategic lawsuit against public participation.” Certain defamation lawsuits are deemed “SLAPP suits” when it is believed that the plaintiff is trying to use a charge of defamation to infringe upon the defendant’s Constitutional right to free speech. Used this way, defamation lawsuits are seen as an intimidation tactic – and unlawful.

That’s where anti-SLAPP laws come in. Because the definition of defamation varies from state to state, about 31 states have enacted anti-SLAPP statutes that address when a lawsuit falls into this category. These statutes allow the defendant (the person against whom a charge of defamation is filed) to file a motion claiming that their statements are protected under the First Amendment. The burden is then on the plaintiff (the person allegedly being defamed) to prove defamation by California’s definitions. California has some of the toughest anti-SLAPP legislation on record (Code of Civil Procedure sections 425.16 through 425.18), so if you are thinking of filing a lawsuit for defamation, it’s a good idea to talk to an experienced lawyer to find out what proof you’ll need to prevail in court.

Yelp Law / Non-Disparagement (Gag) Clauses

To try to fight against negative reviews, many companies have started using non-disparagement/gag clauses in consumer contracts to keep customers from writing negative reviews. Limitations of gag clauses were legislated in California Civil Code § 1670.8, thus protecting consumers who write negative reviews because such gag clauses are not the product of free and deliberate choice.

“Consumers, especially those deceived by advertising, alter-ego websites, and puffed-up scientific claims, do not know when they waive their right to criticize that they will have something to be critical of. Consumers enter the transaction with hope; when there have been misrepresentations and deceptions, by omission or by affirmative statements, they cannot be said to have voluntarily waived their rights. They should not, then, face monetary and injunctive claims arising from an invalid waiver; this argument is even more compelling when such claims are brought against a neutral platform that enables consumers to exercise their right to free speech. Supporting a constitutional right should never be deemed tortious interference with an unconscionable consumer gag clause.” (BRIEF OF AMICI CURIAE, Case No: 8:15-cv-02231-MSS-TBM)

If you are sued for violating a gag clause you can receive upwards to $10,000 plus attorney fees.  Contact Wex Law to discuss further.

What Can You Do If You Are a Victim of Defamation?

In California, individuals are protected by law from being defamed. If someone commits slander or libel against you, you have the right to bring a defamation lawsuit against him or her in civil court. You can be compensated for damage caused to you and your reputation, such as for losing your job or other forms of harm.

There is a statute of limitations of one year to bring a defamation lawsuit in California. You can’t wait too long or you will lose your ability to be compensated. If you or a loved one has been harmed by someone else’s lies, don’t let it go. Call (213) 986-9844 today to schedule a free 30-minute evaluation with a bold, aggressive Los Angeles defamation attorney at Wex Law.


Posted in: Criminal Defense

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