The Basics of Defamation, Libel, and Slander for California Businesses

Once you get out of middle school and high school, you expect to leave much of the associated drama, rumors, and negative experiences behind. Unfortunately, rumors, gossip, and other hurtful speech doesn’t end in high school. And when you run a business, false statements about you or your company can cause a lot of damage to your or your company’s reputation. 

These false statements, communicated as fact, which cause damage to you or your California business are known as defamation. In order to protect your reputation and your business, it’s important to understand the basics of defamation cases.

What Is the Difference between Libel and Slander? 

Defamation is defined as a false statement that damages the reputation of an individual or an organization. Libel and slander are two types of defamation. 

California Civil Code defines libel as a false or unprivileged written statement or other fixed written representation which exposes a person to hatred, contempt, or ridicule, or which injures them in their occupation. Simply put, libel is a written defamation. For example, a comment or review that states that Business A pays its employees less than the mandated minimum wage could be libelous if that statement is false and does damage to the business. 

Slander is defined as a false or unprivileged oral statement which also exposes a person to hatred, contempt, or ridicule or which injures their reputation. Slander per se is a type of slander in which far less proof is needed and is more significant. Slander per se is triggered when there is a charge of a person with a crime or with having been indicted, convicted, or punished for a crime; which states a person has an infectious, contagious, or otherwise loathsome disease; which directly injures the person in regard to his employment, profession, or business, or which may lessen their profits and business success; which insinuates “impotence or a want of chastity”; or which causes actual damage to a person. Slander is oral or spoken defamation. An example of slander would be telling someone an untrue statement as though it were true, such as saying a specific person committed tax fraud when they have not. 

Free Speech, the First Amendment, and Defamation

In a defamation case, the plaintiff is seeking reparation and demanding consequences for the defendant’s speech, either written or oral. The goal is generally to penalize someone for the content of their speech. This brings up important questions about freedom of speech, the First Amendment, and defamation. How does defamation work in a society in which speech is protected? Is all speech protected? What limits are there on free speech in regards to defamation? 

The answers to these questions all come down to two basic rights: the right to freedom of speech, and the right of a person to dignity and to avoid defamation. It is important to protect people’s right to speak freely without fear of retaliation, but it is also important to protect people from the harms that false statements can cause. Because of this, there are some exceptions to free speech. 

The Supreme Court case New York Times v. Sullivan and subsequent cases have established which defamatory statements are protected by the First Amendment and which are not. These cases establish that statements of opinion and true statements are protected. Only false statements, which cause measurable harm, are not protected by free speech. And in the case of public figures, speech protections extend to even false statements in some cases. To pursue a defamation case as a public figure, the figure must prove the false statement was made with malice. 

Filing a Defamation Claim: Burden of Proof and Claim Elements

In the majority of cases, the burden of proof for a defamation claim falls on the plaintiff, the victim of defamation. In order to have a successful suit in California, there are five elements the plaintiff must prove: 

1. That a statement was intentionally made. In order to have a defamation case, the injured party must prove that the statement was made either in writing or speech and that the statement was intentional. 
2. The statement was published. A statement must be either seen, heard, or read by a third party to be considered published. In California, the plaintiff must also establish fault in publication. The defendant’s fault must amount to negligence in the case of private figures. For public figures, the plaintiff must prove the defendant’s statement was made with malice. 
3. The statement was false. True statements are not considered defamation. In order to pursue a defamation claim, the plaintiff must provide proof that the defamatory statement is false. 
4. The statement is unprivileged. Privileged publications include publications made in the proper discharge of an official duty; in a legislative or judicial proceeding; in cases of qualified privilege such as when a former employer is asked for a reference or when a reasonable complaint of sexual harassment is made; and in fair and true report in a public journal of a judicial, legistative, or other public official proceeding. In order to qualify as defamation, the plaintiff must show the statement is unprivileged and does not fall under one of these privileged categories. 
5. The statement was made with malice.  Depending on the type of defamation and the person involved, actual or some other type of malice (hatred, ill-will, or contempt) must be proven.
6. The statement caused injury or damage. The statement must be shown to have caused harm to and hurt the reputation of the subject. The damage may include loss of work due to the statement, lost profits for a business, decreased business traffic, pain and suffering, and emotional distress. 

Be Careful What You Post: Defamation in Social Media

The internet and social media platforms allow people to publish their speech, opinions, and thoughts more than ever before. But the ease of posting online also creates increased possibilities for defamation and increases the risk that such defamatory statements reach a wide audience. Online reviews have become especially prominent in business disparagement and defamation cases. 

Defamation online is governed by the same basic rules as any other type of defamation, except that the First Amendment provides wide protection for online posts. As written statements, online defamation is considered libel. If you encounter a defamatory statement against yourself or your business online, as angry and upset as you may be, you must be mindful of the First Amendment. Thus, while you may be able to pursue a defamation suit against the poster just as you would in any other case, you must keep in mind that opinion and fair comment are protected speech. It is important to note that in the case of social media, plaintiffs cannot pursue a case against the social media platform. These companies, too, are protected from defamation claims, unless they are considered as a “re-publisher.” You must bring the claim against the actual person or entity that made the false statement. 

Ensure a Successful Outcome with a California Defamation Attorney on Your Side

If you have been accused of defamation, or you or your business has been harmed by defamatory statements, an experienced attorney can help you understand your rights and succeed in a defamation lawsuit. They can assist you in building a strong defamation case and recoup any losses you have experienced as a result of slander or libel.

The expert team at Steinberg Law knows the ins and outs of business and employment defamation in California, and they will fight for your rights and reputation. Defend your reputation with a skilled team at your side and contact Steinberg Law today.