The terms defamation, libel and slander may be used interchangeably in popular culture, but they are different in important ways.
Some of these differences date back to medieval times, but they still have a real impact on how modern-day Americans can speak, write and broadcast.
What Is Defamation?
Defamation is the umbrella term that describes statements someone makes about another person, which hurt their ability to function in society, says David Partlett, Ada Griggs Candler Professor of Law Emeritus at Emory University.
Whether it is true or false, a defamatory statement “impugns someone’s reputation,” says Ken Paulson, director of Middle Tennessee University’s Free Speech Center. “It’s the act of making someone’s reputation less pristine.”
What Is Slander? What Is Libel?
Slander is a false defamatory statement that is spoken aloud. Libel is a false defamatory statement, but libelous statements are written and disseminated to a third party.
The law of slander comes from ancient times when most information was circulated by word of mouth, and a rumor could change someone’s life. (Imagine the ramifications in medieval society of saying that someone had the plague.) “So a jurisdiction was developed that protected people from words that would have made people be shunned and avoided by others in the community,” Partlett says.
Centuries later, American state laws still recognize the impact of defamation.
It doesn’t matter if a defendant intentionally spread misinformation or believed the false information was true. Either way, they are liable.
“If you say the words, and they hurt people, you can pay a price for that,” Paulson says.
What’s the Difference Between Libel and Slander?
Besides the fact slander is spoken, there is another significant difference between slander and libel. Generally speaking, in slander cases, plaintiffs must prove they were injured by the false statement to receive damages.
“Harm takes many forms,” Paulson says. “If you lie about finding an insect in your food at a local restaurant, that could potentially harm the business and cost them profits. If you lie about the personal life of a neighbor, that could cause personal anguish.”
On the other hand, in most libel cases, a plaintiff doesn’t have to prove they were harmed by the false statement.
That’s because shortly after the printing press was invented in 1440, a secret British court, known as the “Star Chamber,” began evaluating printed information to see if citizens were using the press to disparage the government. And in cases of seditious libel, the government did not need to prove that it was damaged. Instead, the chamber presumed the citizens’ writings harmed the Crown. Libel was so serious that it was a crime, Parlett says.
Versions of this distinction between slander cases (that require proof of harm) and libel cases (that don’t) continued through English and American common law.
“And this division comes down to the modern day,” Partlett says.
Even when state defamation statutes require plaintiffs to prove harm in libel cases, it is still easier for libel plaintiffs to receive damages. And in a handful of states, libel remains a crime.
Truth Is a Defense in Defamation Suits
A plaintiff is not entitled to damages if the defendant made a true statement, even if a statement did harm the plaintiff.
“If you say your accountant is a sloppy bookkeeper and she is, then you have defamed your accountant,” Paulson says. You hurt her reputation, and her business may suffer because of it. However, because it was a true statement, you wouldn’t owe her damages.
Just make sure you have evidence to prove that your accountant is sloppy.
Freedom of Speech Is Not a Defense in Defamation Suits
The First Amendment is not a defense against libel or slander suits by private individuals.
According to Paulson, people are often confused by the constitutional right to free speech, mistakenly believing the First Amendment protects them from liability for defamation.
“We live in a nation in which it is common for people to say, ‘I have the right to say anything,’ and that is true,” Paulson says. However, the First Amendment only protects Americans when the government tries to punish their speech.
The First Amendment “does not mean that when we express ourselves and hurt others, we are free of liability,” he says.
Protecting Journalists from Defamation Suits: ‘Actual Malice’ Is Required
Given the sheer volume of articles they write, journalists may make mistakes in good faith. Without an exemption for honest mistakes, reporters could be arrested under criminal libel statutes, and news organizations could be bankrupted by lawsuits over trivial errors. Practically speaking, this could negate the freedom of the press that allows reporters to serve as watchdogs over the government.
Therefore, in the 1964 case New York Times v. Sullivan, the Supreme Court established a new standard for defamation cases against reporters and news organizations. Under this standard, public figures can only win a defamation suit against a reporter if the reporter acted with “actual malice.” That means that either that reporter knew the information was false or they were so reckless that they should have known the information was incorrect, Paulson says.
New York Times v. Sullivan ushered in a new era of investigative journalism.
While a journalist’s pure fabrication is not protected, “as long as they act in good faith and are professionals, they are protected from libel suits,” Paulson says.
Libel Is Technology-Neutral: It Can Be Made in Any Format
Libel can be in a handwritten note to a friend, a bulletin-board flyer or a post that goes viral on social media. It doesn’t matter if one person or 1 million people saw it. The scale of distribution just impacts how much money someone receives in damages.
Still, “when the radio broadcast came in, the courts had trouble,” Partlett says. They weren’t sure if radio commentary should be slander or libel.
Eventually, libel’s written requirement was understood to represent a test of permanence. “If it’s permanent, then it should be libel. If it’s impermanent – people shouting – then it’s just slander,” he says.
But newer technologies make that “an absurd abstraction,” Partlett says. Would a video be slander in Snapchat, where it may automatically expire after a set time, but libel on YouTube, where it remains viewable by the public until it is deleted?
“Material put on the internet has a great capacity for creating harm, and it’s got a permanence that no words ever had,” Partlett says.
Parlett is one of the scholars updating the “Restatement of Torts,” a preeminent reference published by the American Law Institute.
He hopes the update will advocate for ending the differences between libel and slander. He envisions a test where, regardless of the technology used, if defamation causes material harm, someone can receive compensation. If the harm is intentional, they could receive additional damages.
But a change like that would be years away. Until then, medieval principles still hold remarkable sway in American law.
