What Is Defamation of Character? The Legal Definition

Defamation of character, or defamation, is a false statement that damages the reputation of the person it targets. While serious, most states treat defamatory statements as civil wrongs—also known as torts—rather than criminal offenses. Here’s what you should know about defamation of character and the steps you can take if you’ve been wronged. 

Defamation of character: Meaning and examples

As a tort, defamation is primarily governed by common law, which is developed through judicial decisions rather than legislation. This means that the specifics of defamation law can vary from state to state, though the fundamental principles remain generally consistent across the United States.

In general, defamatory statements must be: 

1. Untrue and presented as a fact rather than an opinion
2. Shared with at least one other person (without legal protection)
3. Made with a negligent disregard for their accuracy
4. The cause of demonstrable damage to the subject of the statements

Victims of defamation (the plaintiffs) can seek compensation through civil litigation. However, it’s important to note that the potential outcomes of defamation lawsuits vary significantly, depending on the context and extent of the defamatory statement, its impact on the victim’s life, and the plaintiff’s degree of negligence. 

Types of defamation

Defamation includes two main types: libel and slander. 

Libel: 

• Written or published statements
• Includes false claims made in newspapers, books, social media posts, articles, or emails

An email sent to a company’s board of directors alleging that an employee stole property can be considered libel if it leads to wrongful termination. One key characteristic of libel claims are their permanence, as the false statement is recorded and easy to reference repeatedly.

Slander: 

• Verbal statements spoken to a third party 
• Includes false claims made in speeches, broadcasts, interviews, or meetings

For instance, someone could make a slanderous statement by falsely claiming to a local news channel that a certain restaurant owner knowingly uses expired ingredients in their dishes, resulting in a loss of customers. Still, slander can be challenging to establish since it involves proving someone made certain verbal statements. 

How to prove defamation of character

One of the challenges in defamation cases is balancing the right to free speech with an individual’s right to protect their reputation. Courts must acknowledge legitimate criticism and opinion while also providing recourse for those who have been genuinely harmed by false statements. 

Here’s what courts often look for and how defendants may respond:

Key elements of a defamation claim

While the specific elements of a defamation claim depend on the type of claim asserted and the governing state law, the plaintiff generally has to establish four things: 

• Falseness: Evidence that shows the statement in question is objectively wrong. 
• Publication: The defendant communicated the false statement to someone other than the plaintiff. 
• Fault: At a very minimum, the defendant acted negligently (such as failing to fact-check). 
• Damages: The false statement caused actual harm, including damage to reputation, financial losses, or emotional distress.  

Additionally, the plaintiff may need to provide context about their status (public figure vs. private individual) and the statement (matter of public concern vs. private matter), as these factors influence how courts apply the above criteria. 

Burden of proof

In defamation cases, the burden of proof often depends on the plaintiff’s status as a “private” or “public” individual. 

Private individuals: 

• Level of evidence required: Preponderance of the evidence (meaning, the evidence presented by the plaintiff must more convincing than the evidence presented by the defendant)
• What they must prove: The defendant failed to exercise reasonable care in verifying the truth of what turned out to be a false statement

Public figures:

• Level of evidence required: Clear and convincing evidence 
• What they must prove: The statement was made with “actual malice” (reckless disregard whether the statement was true or actual knowledge that it was false)  

The law generally requires public figures to prove actual malice because they voluntarily agreed to place themselves in the public eye. Opinions about them—even if harsh or unfavorable—are protected speech, and fear of litigation shouldn’t deter comments or discussions about public matters. 

Common defenses to defamation claims

When facing a defamation claim, defendants may respond with a few defenses that may protect them from liability:

• Truth. Correct statements, no matter how damaging, don’t qualify as defamation. 
• Privilege. Certain statements may be protected under the doctrine of privilege, such as during legislative proceedings or when the speaker has a legal, moral, or social duty to make the statement. 
• Opinion. Statements of opinion, especially those that cannot be proven true or false, are generally protected under the constitutional right to free speech. 
• Consent. Individuals who willingly and explicitly agree to publish the statement generally can’t later decide it’s defamatory. 
• Fair comment. This defense may apply to otherwise defamatory statements made in the media (e.g., by journalists, critics, and commentators) about matters of public interest (such as reviews or critique).  

However, the viability of these defenses depends on the specific circumstances of the case, the jurisdiction and defamation laws, and the context of the false statements. As a result, defamation plaintiffs and defendants should consult an attorney to understand how these defenses might apply to a particular case. 

How much could I expect from a defamation of character settlement?

As with most civil wrongs, the potential settlement or award in a defamation case largely depends on the extent of the damages suffered by the plaintiff alleging defamation, including the following: 

• Compensatory damages. Also known as actual damages, these reimburse the plaintiff for quantifiable losses like wages, business opportunities, medical bills for emotional distress, or costs associated with repairing their reputation. 
• Assumed damages. In some cases, particularly those involving libel per se (statements so egregious that harm is assumed), courts may award damages without specific proof of loss. 
• Punitive damages. In cases where the defendant’s conduct was provably reckless or malicious, courts may punish them to a higher extent in order to deter similar behavior in the future. However, punitive damages are rare and often subject to limitations in many states. 

It’s important to note that many defamation cases settle confidentially out of court, and settlements often include nondisclosure agreements (NDAs), which makes it challenging to determine expected settlement amounts. 

While there can be some enormous recoveries in defamation cases—such as Fox News’ $787.5 million settlement with Dominion Voting Systems in 2023—these are typically outliers. More commonly, successful defamation claims might result in tens or hundreds of thousands of dollars, depending on the previously discussed factors.  

The defamation lawsuit process

While each case will have its differences, most defamation lawsuits follow the same general process. Here’s what to expect and how you can prepare: 

Step 1: Consult a personal injury lawyer

Working with a personal injury lawyer for a defamation case might seem counterintuitive, but remember that defamation falls under the broader category of torts, or civil wrongs that cause harm. Personal injury lawyers are well-versed in this area of law, particularly in quantifying and proving nonphysical damages. 

Many personal injury lawyers offer free initial consultations to help clients decide how to proceed. You’ll discuss the details of your situation, the defamatory statement’s impact on your life, and any evidence you’ve gathered. The lawyer will then assess the strength of your case, considering your status as a public or private figure and the potential outcomes you may face. 

If the lawyer decides to accept your case, they should explain their fee structure. Many personal injury lawyers work on a contingency fee basis, a set percentage of the settlement or court award, usually between 30% and 40%. Others may charge an hourly rate, often from $100 to $500, depending on their experience, location, and the amount of work involved. 

Step 2: File the complaint

If you decide to proceed, your lawyer will draft and file a formal complaint with the appropriate court. This outlines your allegations, including the defamatory statement, how it was published, and the damages you’ve suffered as a result. It also specifies the legal basis for your claim and the relief you’re seeking, such as monetary damages or a retraction of the statement. 

After filing, the court will issue a summons, and your lawyer will ensure it’s properly served on the defendant. The defendant may file an answer admitting or denying the allegations, or they might file a motion to dismiss the case. 

Step 3: Conduct discovery

The discovery phase is where both parties gather information to build their cases. Conducting discovery can be lengthy, as the process usually involves the following: 

• Interrogatories: Written questions that must be answered under oath by the opposing party
• Requests for production: Demands for relevant documents, such as emails, social media posts, or business records
• Depositions: Oral testimony given under oath by the parties involved, witnesses, or experts
• Requests for admission:  Written statements that the other party must admit or deny

During discovery, your lawyer will seek evidence to prove the defendant made the defamatory statement, that it was false, and that it caused you harm. Conversely, the defendant’s lawyer will likely seek information to support their defenses, such as evidence that the statement was factually correct, an opinion, or that you consented to its publication. 

Step 4: File any pretrial motions

After discovery, either party may file pretrial motions to resolve certain issues before the case goes to trial. For instance, if one party believes the facts uncovered during discovery support their position, they may ask the court to decide the case without a trial.

The defendant may also file a motion to dismiss if they believe your complaint fails to state a valid legal claim, even if all the alleged facts are true. Likewise, if one party isn’t cooperating with discovery requests, the other may ask the court to intervene. 

The judge’s rulings on pretrial motions can significantly shape the case. They may narrow the issues for trial, exclude certain evidence, or even result in a dismissal. Still, your lawyer will advise you on the potential outcomes of these motions and how they might affect your case. 

Step 5: Negotiate settlements

While settlement negotiations can occur at any point during the lawsuit process, they tend to intensify after discovery and pretrial motions. At this stage, both parties have a clearer picture of their cases’ strengths and weaknesses, which can motivate settlement discussions. 

Here’s what you might see at this stage: 

• Informal negotiations. Your lawyer may hold direct discussions with the defendant’s attorney to explore settlement possibilities. 
• Mediation. Sometimes, parties agree to (or the court orders) mediation, in which a neutral third party helps facilitate settlement discussions. 
• Nonmonetary terms. Settlements may include nonmonetary terms, such as a public apology or retraction of the defamatory statement. 
• Evaluating offers. Your lawyer will present any settlement offers to you, explaining their implications and advising on whether to accept, reject, or counter. 

Your lawyer can offer valuable advice, but the decision to settle is ultimately yours. If the settlement doesn’t provide fair compensation, your case may proceed to trial. However, it’s worth noting that many defamation cases settle out of court, as trials can be unpredictable, expensive, and emotionally draining for all parties involved. 

Step 6: Attend the trial

Trials can last from a day to several weeks, depending on the case’s complexity, but your lawyer will guide you through each stage, from jury selection to closing arguments. You’ll likely need to testify, recounting your experience and the impact of the defamatory statement. Throughout the process, your lawyer will present evidence and witnesses to support your claim, while the defense will attempt to challenge your case. 

Step 7: Hear the verdict (and prepare for appeals)

While the verdict concludes the legal process, it may not be the end. If you win, the court will order the defendant to pay damages, but if you lose, you’ll need to discuss the possibility of an appeal with your lawyer. Likewise, the defendant may decide to file an appeal if you win. 

Regardless of the outcome, be prepared for the emotional impact of the verdict and the potential for a prolonged legal procedure if appeals are involved. More importantly, before you initiate this legal process, the first step is finding the right lawyer for your defamation case. 

When you’re ready to take action, we encourage you to explore our directory of personal injury lawyers and get the ball rolling with a consultation. 

FAQs

Do I need a personal injury lawyer for a defamation case?

While not technically necessary, hiring a personal injury lawyer with experience in defamation cases can substantially improve your chances of a successful outcome. They can help you understand tort law and the strength of your claim, gather evidence, and effectively present your case in court. 

What qualifies as defamation of character?

For a statement to qualify as defamation, it must be presented as fact (not opinion), shared with a third party, made negligently or with malice, and cause harm to your reputation or livelihood. 

How long does it take to win a defamation case?

All things considered, a defamation case can take anywhere from several months to a few years to reach a resolution. The exact length depends on factors like the case complexity, court schedules, or whether the case settles through negotiations rather than litigation. 

What cannot be considered defamation?

Truthful statements, opinions, and privileged communications (such as those made under oath in court hearings) cannot be considered defamation. Additionally, statements directed at a public official may not be considered defamatory under certain circumstances, as they agree to a certain degree of public scrutiny and negative opinions. 

How long do you have to file a defamation lawsuit?

Typically, you have one to three years from the date the defamatory statement was made or published to file a lawsuit. The time limit, known as the statute of limitations, varies by state. Some have shorter periods, while others may extend the deadline if evidence of defamation is discovered later.