Defamation Simplified

Defamation can get very convoluted. It's helpful to organize the tort by dividing it into common law defamation, and defamation that incorporates constitutional concerns.

Common law defamation (defamation that entirely concerns a matter of private concern) contains only four elements. There must be defamatory language made by defendant that was of or concerning the plaintiff. In addition, the defamatory language must be published to a third person, and damages must result as a cause of the publication of the defamatory language.

When the matter is of public concern, however, the defamation falls outside the scope of common law defamation, and constitutional considerations come into play. Namely, in addition to the elements listed above, plaintiff must prove that the statement made by defendant was false, (under the common law, defendant was required to prove truth as a defense), and that there was fault on the part of defendant.

The extent of fault required entirely depends upon the status of the plaintiff. If the plaintiff is a public figure (one who has achieved fame or has placed himself into a central role in a public controversy), then plaintiff will be required to prove a higher degree of fault than if plaintiff is a private person. A public figure must prove that defendant made the statement knowing that the statement was false, or that defendant recklessly disregarded the truth of the statement when the statement was made. In other words, a public-figure plaintiff must prove malice. If, instead, the plaintiff is a private person, then plaintiff need only prove that defendant was negligent in ascertaining the truth of the statement.

Note, however, that it will still benefit a private person to prove malice on the part of defendant, because in doing so, the private person's damages will not be limited to actual injury; rather damages will be presumed, and punitive damages will be available to the plaintiff.