You hear it all the time: “I’m going to sue you for slander!” “You’ve defamed me, you’re going to hear from my lawyer!” “That’s libel! I’ll see you in court!” Sometimes you’ll read about a celebrity getting big dollars because a newspaper has libeled her.
So what is “slander”? “libel”? “defamation”? And can you sue on them?
Let’s start with an easy one first. Libel and slander are types of defamation. Slander is oral or spoken defamation. Libel is written defamation.
What is defamation?
Now that that’s out of the way, what is defamation? Conventional wisdom holds that it is when someone says something bad about you. But the legal meaning of defamation, the type you can sue on, is much narrower. The reality is that, in most cases, what you think is defamation is not defamation in the legal sense.
Here are some examples.
Suppose you have a co-worker who goes around telling everyone who’ll listen, “John is a real bastard. They oughta fire him!” Sounds terrible right? That is probably not defamation.
You’re a standout employee who is flawless but your boss gives you a blatantly false performance review that goes into your personnel file and it says, “You’re the worst employee ever. You constantly screw up. Shape up or you’re going to be fired!” Again, probably not defamation.
In California, Civil Code §§ 45 to 47 define defamation as follows:
Libel: “false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”
Slander: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:
1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;
2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
4. Imputes to him impotence or a want of chastity; or
5. Which, by natural consequence, causes actual damage.”
The legal requirements for proving defamation
Defamation breaks down into the following basic requirements:
1. Defamer made a defamatory statement to at least one other person besides the victim
2. The statement was a false statement of fact (i.e., something that can be proved true or false), not opinion. Bad performance reviews are typically held to be statements of opinion, so if you get one, you won’t normally be able to sue for defamation. It would have to really go beyond the pale to qualify as defamation.
3. Hearer reasonably understood that statement referred to the victim
4. Hearer reasonably understood that the statement meant something defamatory
5. Defamer failed to use reasonable care to determine whether the statement was true or not before making it
The requirements can vary and grow depending on the circumstances. For instance, defamatory statements made about your professional reputation or competence are considered especially severe, so damages are simply assumed. Otherwise, you need to prove you were actually harmed by the defamation and in what way. If you’re a “public figure”, then the burden is on you to prove that the defamatory statement is false. Otherwise, the defamer has the burden to prove that the statement is true. If you’re seeking punitive damages (damages which don’t just compensate your harm, but actually punish the defamer), you need to prove that the defamer acted with “malice”, “oppression”, or “fraud”.
Employer liability for employee defamation
Employers can be held liable for defamatory statements made by supervisors, managers and other employees which are made “in the course and scope of their employment”. That last part means, if a supervisor defames you while drinking at a bar while on vacation, you might have a defamation claim against the supervisor, but you probably can’t go after the employer. If the supervisor made the defamatory statement at a company meeting, though, the employer could be on the hook.
Because this is the law we’re talking about, it shouldn’t surprise you that there are exceptions to the above. In fact, there’s quite a few. Here are some of them.
1. Employers’ statements to co-workers. These statements, even if otherwise defamatory, may not be not grounds for defamation liability.
2. Co-workers’ statements. Employers may not be liable for otherwise defamatory statements made by co-workers to each other.
3. Employers’ job references to other employers. If an employer gives a defamatory job reference about you to another one of your employers, the statement may not be actionable as defamation, so long as the employer did not act with malice. [Note, California Labor Code § 1050 does prohibit ex-employers from intentionally interfering with your attempts to find a job by giving out false or misleading job references.] In any case, most employers nowadays don’t want to run the risk of getting sued and when asked for a reference, aren’t willing to do much more than confirm your dates of employment and your position with them.
Some pitfalls to beware of
If you believe you have been defamed, DO NOT WAIT. California Code of Civil Procedure § 340(c) requires you to file your lawsuit within 1 YEAR!
Also, here in California, you should bear in mind that if you bring a defamation lawsuit, you could be subject to a nasty court procedure called an “anti-SLAPP motion”. This procedure requires you, in certain special cases, to prove that you have a likelihood of winning your defamation claim very early on, even before your lawsuit has really begun! If you lose, you could be on the hook for potentially big attorney fees and legal costs.
If your employer is a government entity, special rules and procedures apply. For instance, you may need to first make certain government filings before you can bring a lawsuit.
All in all, the above might seem pretty intimidating. Truth be told, it is. Courts do not generally favor defamation lawsuits and the legal requirements are complicated. Of course, that doesn’t mean you should give up before you even start! Many defamation lawsuits have resulted in multi-million dollar verdicts and justice for the victim.
If you think you have a defamation claim, do not wait. Pick up the phone and talk to a lawyer now.