Elements and Complaint
Defamation is a statement that injures a third party's reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements).

To win a defamation case, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence; and 4) damages, or some harm caused to the person or entity who is the subject of the statement.

In Davis v. Boeheim, the court held that in determining whether a defamation claim is sufficient, the court looks at whether the "contested statements are reasonably susceptible of a defamatory connotation" 

However, as the court held in Davis v. Boeheim, because the courts recognize the plaintiff's right to seek redress as well, many courts have declined from dismissing the case for failure to state a claim, as long as the "pleading meets he "minimum standard necessary to resist dismissal of the complaint." (Under Twombly & Iqbal test, a complaint must allege "enough facts to state a claim to relief that is plausible on its face).     

Burden of Proof/ Showing of Fault

Under the common law, private defamation claims were actional per se, meaning that a defendant could be held liable for saying something that defamed the plaintiff's reputation, regardless of his guilty state of mind (malice/reckless/negligence).  However, most states have now imputed certain guilty state of minds that are required to be actionable.  For example, Levinsky's, Inc. v. Wal-Mart Stores, Inc. held that in Maine, all defamation claims need showing of fault, which requires at least negligence of the defendant, i.e. that if he did not actually know that the defaming statement was false, he would have known it if he had taken reasonable care.  

However, for Publicly-known figures to succeed on defamation claims, the U.S. Supreme Court has held in St. Amant v. Thompson that the public-figure plaintiffs must show that the false, defaming statements have been said/made with "actual malice" which is established through that is, with knowledge that it was false or with reckless disregard of whether it was false or not.  This is because the U.S. Supreme Court's 1964 decision in New York Times v. Sullivan has restricted defamation claims, limited by the First Amendment concerns. Thus, for instance, public officials and public figures (people who are famous) must show that statements were made with actual malice to recover in an action for defamation. Actual malice means that a statement was made with knowledge that it was false or with reckless disregard of whether or not it was false. In addition, a plaintiff must show actual malice by "clear and convincing" evidence rather than the usual burden of proof in a civil case, preponderance of the evidence. 

Privileges and Defense

Truth is widely accepted as an "absolute defense" to all defamation claims.  Therefore, for any plaintiffs to succeed on defamation claims, they must first
1) show that the statement is 1) False, and 2) establish the showing of the particular defendants' fault.  

Defamation claims are also subject to a number of privileges. The types and limits of these privileges will vary from state to state.

An absolute privilege is a complete defense to a defamation claim. For instance, statements made by witnesses during a judicial proceedings are subject to absolute privilege. The reason is that those statements are subject to sanctions, if the witness knowingly testified falsely.  Likewise, as the California Court of Appeals held in GetFugu, Inc v. Patton Boggs LLP, statements made during litigation are privileged, pursuant to the doctrine of Litigation Privilege, which “applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  Similarly, Statements made during legislative debates are also protected by an absolute privilege. 

Qualified privilege also exists to some extent, but the courts have also shifted from the interests of employers toward the rights of individuals by narrowing the common-law qualified privilege in defamation actions.  One such example of qualified privilege category includes former employer's speech or references of the former employee.  As one commentator noted, "[c]ourts . . . have diluted the protection [of the qualified privilege] by using low-threshold standards to defeat [it] . . . and to shift the burden of defense to employers." Further, courts have withdrawn employer statements from the protection of the qualified privilege although these statements historically were subject to that protection. For example, the protection of the privilege formerly extended to the right of an employer to discuss with employees the misconduct or reason for discharge of other employees. However, court decisionsin a number of states today demonstrate that such information is less often considered to fall within the qualified privilege. In fact, one state court has withdrawn the mantle of the qualified privilege entirely from employer references that include allegations of criminal activity by the employee.


Last Updated June of 2016, Jonathan Kim