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Libel vs. Slander

Libel vs. Slander

What is the difference between libel
and slander?

Libel and
slander are both forms of defamation. 
Defamation is a common law tort, governed by state law, in which an
individual makes a “publication” of a defamatory statement of and
concerning the plaintiff that damages the reputation of the plaintiff.  The distinction between slander and libel
comes in the form of the publication.

Slander
involves the oral “publication” of a defamatory remark that is heard
by another, which injures the subject’s reputation or character.  Slander can occur through the use of a hand
gesture or verbal communication that is not recorded.  Libel, on the other hand, is the written
“publication” of a defamatory remark that has the tendency to injure
another’s reputation or character.
 Libel also includes a
publication on radio, audio or video. 
Even though this would be considered oral, or verbal, communication to
someone it is actually considered to be libel because it is published in a
transfixed form.


What are the elements of a cause of
action for libel or slander?

The elements
of a defamation suit; whether slander or libel, are:

1.     A defamatory statement;

2.     Published to a third party;

3.     Which the speaker knew or should have
known was false;

4.     That causes injury to the subject of
the communication


Litigation differences

Slander and libel lawsuits differ in the way that a prima
facie case must be proven.   In the case of slander, the defendant doesn’t
have to prove that the statements he made are true; instead the plaintiff
 has to
prove that the defamatory statements made against him are false. In other
words, the burden of proof is on the plaintiff.

In making a prima facie case for
libel
first, the
plaintiff needs to prove that the statement was false.  This can be difficult to prove, especially if
evidence has disappeared.  For some
claims that fall within “libel per se” these are easier to prove.  The accusation that one is a criminal can be
easily proven false by submitting a lack of a criminal record.  Proving falsity in a slander case can be
difficult, especially if evidence has disappeared.  For some claims that fall within
“slander per se” these are easier to prove.  The accusation that one is a criminal can be
easily proven false by submitting a lack of a criminal record.

Second, in
both a slander and libel case the plaintiff needs to prove that the statement
was published by the defendant.  Libel
cases are easier to prove than slander cases. 
A perfect example is when a newspaper makes libelous statements.  There is a printed copy of the statement,
with the authors name usually right under it. 
Slander, however, does not create the same tangible evidence.  Often slander involves a “he said, she
said” situation.  Unless the
publisher admits to having made the slanderous statement there is often no
proof that it was ever said.  If one is
contemplating a slander action then witnesses should be gathered far before any
decision to file a lawsuit.


Damages

Differences
exist in the amount of damages that are awarded in slander and libel
actions.  In a libel action, unless the
plaintiff is a public official or public figure, the plaintiff does not need to
prove financial damages.  The common law
has made a policy determination that the publication of defamatory statements
in a transmittable, affixed form that is capable of widespread and simple
dissemination will certainly cause damage and therefore damage to one’s
reputation or character is enough for a court to impose damages.

A slander
action is different.  The threat of a
single publication through a medium incapable of mass dissemination, longevity,
or permanence shall is not considered to be as grave as that of a libelous
publication.  Therefore the common law
requires that the plaintiff prove, not only damage to his/her reputation, but
also financial damage. 


Is defamation on the internet libel
or slander?

It is
unclear at this point whether the transmittal of defamatory statement over the
internet constitutes libel or slander. 
This may not seem like an important distinction but it is important,
especially as to the awarding of damages. 
Some cases throughout the U.S. court system have tried to answer the
question.

In Varian v. Deflino
& Day
two former employees had libeled Varian executives by posting
more than 14,000 defamatory messages on over 100 different websites.  The jury found that the defendants liable for
defamation as well as misappropriation of the executives names.
  

In 2006 a
Florida court awarded a plaintiff $11.3 million dollars when the defendant
posted numerous comments on message boards defaming the plaintiff and her
business reputation.  The court did not
specify whether the cause of action was based on libel or slander.

Due to the
courts unwillingness to specify a specific form of defamation associated with
internet use it can be perceived that the court system has not yet determined
how to deal with the matter.  Cyberlaw is
a new and important field of law and as more cases come to trial stage the
answer to this question may come with it.

 

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