Dan told Ted some unflattering things about their colleague, Paul, in an email. When Paul found out, he claimed he intended to sue Dan for slander. Is Dan in trouble? Is Paul about to waste money on a lawyer? Is this even slander? Understanding defamation can be tricky. In legal terms, defamation is defined as “any intentional or false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.”
Defamation is not as easy as “X said something bad about Y to Z”. All slander is defamation, but not all defamation is slander (spoken defamation). In fact, the most harmful type of defamation is often libel (written defamation) because of its relative permanence. Regardless of the type, defamation is easy to allege but difficult to prove. In order to prove defamation in court, you must meet all six elements of defamation in Missouri – if even one is missing you have no case. Defamation does not include things said or written to you in private (spoken directly to you away from others, sent in an email, etc.) even if such statements, if made publicly, would be considered defamation. If you tell others what was said to you and you suffer one of the harms that come from defamation, the speaker does not suddenly become liable for his or her comments that were intended to stay in private.
The Internet provides another hurdle. Even if you can point to clear libel and show definitive damage to your reputation, you still might be left with no legal recourse. The anonymity of the Internet has definite benefits but for your claim it will likely prove an insurmountable roadblock. Service providers are usually under no compulsion to release the real-world identities of its users. Suing the provider or even a specific website won’t do you much good, especially when the defamation is in the form of a user comment. Oftentimes the best you can do is ask the provider to take the defamatory material down and hope they comply.
Even if you are successful in proving defamation, do not expect a massive windfall – your victory may result in as little as a public apology or retraction.
Six Elements of Defamation in Missouri:
- Of a defamatory statement
- That identifies you
- That is false
- That is published at least negligently
- That damages your reputation
Slander: Verbal defamation heard by a third party. Slander can also include hand gestures. If the defamation is recorded, it will likely be considered libel; however, just because something could be recorded doesn’t automatically make it libel. Slander can be difficult to prove in court – such an issue can often become a “he said/she said” argument. Here’s a tip – he said the slanderous statement.
Libel: Written defamation seen or heard by a third party. “Written” has a broad meaning here. It can be an actual writing (newspaper/internet posting, etc.), audio or video (TV/radio/ YouTube posting, etc.) or some other physical manifestation (a drawing/an effigy/altered photographs, etc.). Libel can be easier to prove in court because the defamation is in a physical form, but by no means does this mean you will automatically win. Here’s a tip – libel has little literary value.
A legal action involving defamation can be costly and difficult to win. Before going the legal route, think about a few things:
Is the statement about you? Even if you are not specifically named, it must be obvious the statement is about you. A general statement, which may or may not apply to you, will not be good enough. Remember, it does not matter how libelous or slanderous the statement is – if the statement could reasonably be seen as non-defamatory, courts will usually consider it so.
Is the statement substantially true? Truth isn’t an absolute defense, but it can be difficult or even impossible to overcome. Why only substantially? Even a statement with some errors or exaggerations can still be considered generally true. For example, someone tells a colleague you were arrested over the weekend for drunk driving after crashing your car. However, there was no accident; you were stopped and arrested at a checkpoint. This detail will likely have little bearing on any potential defamation lawsuit.
Is the statement an opinion? An opinion might be harsh and it may be cruel, but it is difficult to prove as defamation. If the statement started with something that could indicate it is an opinion (“In my opinion”, “it is my belief”, etc.), Missouri courts tend to read the statement as an opinion rather than a statement of fact (which could be defamation). If the statement is an opinion, it will rarely matter how harsh or hyperbolic the language is.
Have you suffered any substantial damages? Can you point to a specific person or people who have a lower opinion of you because of the statement? Are you in danger of losing your job or other income because of the statement? You might be embarrassed, shocked or mad about the statement, but if you can’t prove any actual damage, you have no case. Even if the statement seems like one that would potentially cause you damage, you can’t bring a case based on an inference.
Is there anything that is definitely defamatory? Yes. Anyone who falsely and maliciously alleges that another is “guilty of fornication or adultery” will find himself or herself with little or no legal protection under Missouri statute.
Scott v. LeClercq, 136 S.W.3d 183 (Mo. App. W. 2004) – principal successfully brings claim of defamation against wife’s lover
Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809 (Mo. 2003) (en banc)
Riley v. Riley, 340 S.W.3d 334 (Mo. App. W. 2011)