Nicholas Carroll

Defamation of Character Nutshell

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Defamation of character is written or spoken injury to a person or organization's reputation. Libel is the written act of defamation, vs. slander, the oral act of defamation.

You often hear "Truth is the perfect defense against libel." A curious notion, not entirely supported by what goes on in the courts. Truth is a very good defense. It may prove an unshakable defense if you have $50,000 for lawyers to defend against a defamation lawsuit. If you don't feel like being on the frontier of legal theory, you should build a somewhat better defense. Add on these concepts:

Avoid the impression of malice. "Malice" means different things. When applied to mainstream media, the legal meaning is closer to "reckless disregard of the facts" – so lawyers for daily newspapers and radio/TV usually refer to "fault" rather than malice. For an individual, "malice" pretty much means the dictionary definition: intent to do harm.

State the facts, and then state your opinion separately. This is a legal defense – and also keeps things clear in your mind.

All wrong: "My neighbor John Smith is a stinking lush." This is wildly defamatory: an unproven, judgmental ("stinking" and "lush" instead of "alcoholic") statement about a private individual.

Getting better: "Governor Smith consumed 14 glasses of whiskey last night at the corner bar. In my opinion he's an alcoholic." The proof is a bit hazy – getting drunk once does not prove alcoholism – but a governor is a public figure with less protection than John Smith, you have clearly separated fact from opinion, and there is no particular evidence of malice.

Pretty safe: "Governor Smith consumed 14 glasses of whiskey last night at the corner bar. I wouldn't be surprised to learn he's an alcoholic." This is entirely fact, with no clear evidence of malice, about a public figure.

What defamation is not.
Generally, a statement made about an undefinable group of people or organizations cannot be defamation. Take, "Real estate agents are crooks." It's defamatory enough, but there is no identifiable victim.

"Most of the agents at Smith Real Estate Company are crooks" is getting dicier, but it is still hard to define the victim.

"Smith Real Estate Company is a crooked company." Wham! You have a victim: Smith Real Estate Company.

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