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To Sue, or Not to Sue: Defamation, Slander and Libel 101 – The Basics

Looking at Defamation from a PR Point of View

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If you’re a public figure, or in the public relations business, there’ll be times when people say such outrageously wrong things – on TV, in print, on the web – that the person attacked will want to file a lawsuit.

The law differs depending on where you live. British law makes it easier to win these sorts of lawsuits.

In the United States, it’s tougher.

Every reporter who’s gone to journalism school has taken press law, and as a professional, they don’t want lawsuits filed against them saying that (a) they carelessly and knowingly printed lies, or said lies over the air, and (b) those lies hurt somebody.

On the other hand, filing a lawsuit for defamation, slander, libel or invasion of privacy is a big step, and from a PR standpoint, it can be a big mistake.

Though laws are different, the common principle in defamation of character cases are, basically, this:

(1)    Someone published a falsehood about another person.
(2)    That falsehood was damaging that person.

Then it gets complicated.

“Published” doesn’t have to mean printed in a newspaper. It can be said on a TV program, on the radio, in a speech, printed on flyers – basically, it has to be spread somehow, intentionally.

Libel typically refers to publishing something that’s permanent. A newspaper.

Slander usually refers to publishing a falsehood by saying it, or another transitory method. In the electronic age, maybe an internet chat session.

When a Regular Citizen Is the Victim

Regular citizens are treated differently, both when they say something false and when they’re the victims of defamation.

If you’re a private citizen, and a newspaper prints something false that’s damaging, there’s a much lower bar to hurdle to get damages from them in court.

Here’s an example: You’re Joe Smith, a plumber, minding your own business. Somebody with a similar first and last name – Jake Smith -- is arrested and accused of a shooting a police officer. The newspaper is careless and puts a story on page 1 with the headline, “Joe Smith accused of shooting state trooper” with a photo of you they had from when you were the Rotary Club vice president.

Clearly, they published something false. Obviously it’s damaging. Who wants to hire a plumber accused of being a cop killer? This is a classic case where a correction on the bottom of page 3 won’t fix things. So you’d see a lawsuit for libel. The newspaper would probably lose. Clearly, they made a mistake.

When a Public Figure Is the Victim

In the United States, the bar is much higher when it’s a public figure who’s the victim.

Even if you don’t intend to be famous, and aren’t a public figure or celebrity, the courts have ruled that you can become an involuntary public figure – by being accused of a crime, for example.

The 1964 Supreme Court case New York Times vs. Sullivan established that a public figure must prove that not only that a false statement was published it, but that it was done with “actual malice.”

That means the person or media organization making the false statement knew it was false but published it anyway, or should have known it was false. That they demonstrated “reckless disregard for the truth” – they didn’t check, or they didn’t care.

This is a huge hurdle to leap.

There’s a gray area, an in-between category of a “limited public figure” – a private citizen, a non-famous person, who injects themselves into a debate or the public eye. If you do that, you lose some of the protections of being a plain old private citizen.

Now, let's say it's all of those conditions are met, that it's a clear case so far. There are still defenses that you have to hurdle.

And if those defenses don't pose a problem, you should look at the costs and benefits -- from a PR perspective -- before you decide to sue and start calling lawyers.

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