There is a thin line between one individual’s right to freedom of speech and the right to protect one person’s good name. It is usually hard to determine which personal comments are right and which deviates from defamation law.

The word “defamation” refers to an act that comprises any statement that hurts the reputation of somebody. When the statement is in writing and published, the defamation is known as “libel.” When the statement is hurtful, it is called “slander.” The government cannot imprison somebody for saying a defamatory statement because it is not considered a crime. However, defamation can be a civil wrong or a tort. The individual who suffered defamatory statement may sue the person who made the remark or statement under the defamation law.

Defamation law has a fine line from the right to freedom of speech to the right of a person to avoid defamation. Individuals may be free to talk about their experience in an honest way without the fear of being accused of saying something mean, but true about somebody. But people have also the right to not have false statements made that can damage or hurt their reputation. Discourse is vital to a free society and the more open and honest the discourse, the better for the society.

Elements of Defamation Lawsuit

Defamation law alters when you cross state orders but there are some laws that are universally accepted as standards that make laws the same wherever you are. When you think you have been a victim of some defamatory remarks, whether it may be a libel or slander, then you can file a lawsuit to recover. Basically, to win your case, you must prove the following conditions:

• That somebody made a statement or remark;
• That the statement was published;
• That the statement has caused you injury;
• That the statement was false; and
• That the statement was not classified into any privileged category.

To know what you need to do to win your defamation case, here are the essential elements that you need to know:

The Statement: The “statement” needs to be verbal or spoken, written, or expressed in some ways. Since spoken word or words usually disappears quickly from the memory, slander is usually considered less harmful compared to libel.

The Publication: So that the statement will be considered as published, a third party must have seen, read or heard the defamatory statement. The third party is somebody apart from the individual who made the statement and the subject of the statement. It is different from the traditional meaning of the term “published,” the defamatory statement does not require to be printed in a certain book. Instead, when the statement is heard on the television or seen scrawled on somebody’s door, then it is considered as “published.”

Injury: To be successful in defamation case, the statement must be proven to have caused harm or injury to the subject of the statement. It means that the statement should have hurt the reputation of the subject of the statement. For instance, the statement caused injury when the subject of the statement lost his/her job due to the statement.

Falsity: Defamation law considers the statements defamatory when they are, as a matter of fact, false. A true statement, regardless how harmful it is, may not e considered defamation. Aside from this, due to their nature, the statements of opinion may not be considered false since they are subjective to the speaker.

Unprivileged: Finally, for the statement to be considered defamatory, it must be unprivileged. The lawmakers decided that one cannot file defamation case in instances where the statement is considered privileged. For instance, if a witness testifies at a trial and makes a statement which is both false and harmful, the witness will be exempted or protected to a lawsuit for defamation since the act of testifying at a trial is considered privileged.

Even if a statement is privileged or unprivileged, it is a policy decision that lies on the lawmakers. The lawmakers should weigh and balance the need to prevent defamation against the significance that the individual who is making the statement has the free ability to say what he/she wants.

Witnesses on stand at a trial are good examples. If a witness is giving his/her testimony, we, as a society, like to make sure that the witness gives his/her complete account of everything without fear of saying something defamatory. Similarly, lawmakers are protected from defamation lawsuits as a result of giving statements made in legislative chamber or in official materials.

Social Media and Defamation

As the social media emerges, it is nowadays easier to make defamatory statements. This is because any social media services such as Facebook and Twitter permit you to “publish” instantly some statements that can reach thousands of persons. Whether it is a blog post or Facebook status updates, or a YouTube video, online defamation is dealt with the same manner with traditional types. This means that you can be sued for any defamatory statement you post online.

Higher Burdens for Defamation with Public Officials and Figures

The government treats with high priority on general public who are permitted to speak their mind about their elected officials and other public figures. The individuals, who are in the public eye, receive lesser protection from defamatory statements and face the burden when they try to win a defamation cases.

When the official is assessed in a false and harmful manner for something that associated to their conduct or behavior in the office, the official should prove all the elements mentioned earlier about the ordinary defamation, and should also prove that the statement was made with “actual malice.”

“Actual malice” was described in Supreme Court case which was decided in 1964, Hustler v. Falwell. In that lawsuit, the court supported that some statements that were otherwise be defamatory was immune by the First Amendment of the United States Constitution. The court started that the US society has a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.”

According to Court, public officials may win in a defamatory lawsuit only when the statement made was not an honest mistake and was published with the actual intention or purpose to harm the public figure. The Court stated that the actual malice might only happen when the individual who was making the statement knew that the statement made was not true at the time he/she made it, or had reckless disregard if it was true or not.

For others who are in the public eye but are not public officials, the defamation laws are also different. These persons such as movie stars and celebrities should also show, in most of the situations, that the defamatory statements were made with actual malice.

Freedom of speech is less meaningful if the statement is made about a private person because the statement is may be not about a matter of public significance. As mentioned earlier, a private individual has no need to prove that the person who made the statement acted with actual malice to win in their defamation cases.