Are you clear on what qualifies as defamation? It’s a term that gets thrown around a lot in the entrepreneurial space, but today on The Legalpreneur, I am breaking down the five criteria to prove a defamation case. I clearly define what qualifies as defamation and break down common misconceptions about negative statements.

The main criteria of defamation are whether or not the statement can be proven as true or false and if it is made public. People are allowed to have negative opinions about you and your business, so not every rude comment calls for legal action. 

Sometimes words travel farther than people intend, but everyone is still responsible for public statements made. I break down one of the most disputed criteria for defamation…fault. With social media, it is easy to post something, but once you do, the ripple effect can reach further than you intended. I am here to tell you that you can still hold the original person responsible if they were the catalyst for your public defamation. 

Each criterion is nuanced and case-specific. if you suspect you are a victim of defamation, be sure to enlist an attorney to see if you have a civil case. As always, this is something that we at The Legalprenur can assist you with, so be sure to check out our membership plans to see if we can help you with your legal needs!

If you want to understand what qualifies as defamation, listen now!

Key Takeaways:

[0:30] Filing a civil claim for defamation 

[1:40] What is slander vs liable 

[2:00] Defamation cannot be an opinion

[3:00] It must be a provable true or false statement

[3:35] Statements must be in the public domain 

[4:29] To be legitimate, you must be clearly identified in the statement 

[6:25] It must have a negative impact on your public reputation 

[7:20] You have to be able to  prove that the statement is demonstrably false 

[9:10] Getting clear about who is actually at fault 

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The Legalpreneur Podcast is advertising/marketing material. It is not legal advice. Please consult with your attorney on these topics. Copyright Legalpreneur Inc 2022

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Legalpreneur transcript:

Andrea Sager  00:03

Welcome to the Legalpreneur podcast. I’m your host Andrea Sager founder and CEO of Legalpreneur Inc. As a serial entrepreneur and someone that works exclusively with small business owners legally protecting their business. I’m dedicated to covering common legal issues faced by business owners, providing you with the business knowledge you need to catapult your business’s growth and showing you just how some of the world’s most elite entrepreneurs have handled these legal and business issues themselves. In true attorney fashion, the information in this episode is not legal advice. This is for informational purposes only. And you should always consult with your attorney before implementing any of the information in the show. Hello, there Happy Monday. Welcome back to the show, we’re gonna cover a topic I don’t think I’ve ever covered in depth on the podcast, that is defamation. Now, there’s a lot of details here. I mean, we can get into the nitty gritty, there’s a lot of nuances. 

Andrea Sager  01:03

So I’m going to cover really the basics, because there’s five elements to prove a defamation case. Now, this is a civil claim, meaning you would sue somebody for defamation. Some states do have a claim where defamation could be punishable with criminal law, they could be punished criminally. And it varies by state all these elements. So whether it’s civil or criminal, it does vary by state, but for the most part, the general elements are the same. So civilly, there’s five elements typically. And I’m going to go through those and really go into detail because I do get a lot of questions about defamation. If you listen, a couple weeks ago, I covered getting canceled and a lot of times defamation comes up in those claims those issues. And so I want to make sure we cover it here. Now, the thing about defamation, there’s really two types, slander, libel. So slander is what is actually spoken libel, it’s written. So somebody writes something about you online, that’s libel. If they go on, you know, live TV and say something, it’s slander. 

Andrea Sager  02:18

They’re both defamation though. Now, when it comes to defamation, first things first, it has to be an actual statement that can be proven as true or false. If it’s just an opinion, it can not amount to defamation in any case, and if it can be proven as true or false, but it is actually true. It is not defamation. So if somebody says something about you in a negative light, and if they say like, Oh, she’s the worst person ever, and people stop shopping with your business, for whatever reason, that’s not defamation, because saying she’s the worst ever, that’s an opinion. Now, if they got factually specific and said, This person is awful, they overcharged me by $500. And they did XYZ, which can be proven as true or false. That could amount to defamation because if it’s something that can be proven as true or false, that can amount to defamation, I’m not saying it is. But that’s really what you have to start with is, what kind of statement is it because if it’s an opinion, right off the bat, not defamation. So with this statement for defamation, we’re going to refer to it as the statement it has to be publicly available. So if you’re writing in your journal, and you’re writing these statements that can be proven as true or false, and you don’t ever intend for it to be public information. 

Andrea Sager  04:01

And ultimately, what happens, maybe somebody steals your journal and then publishes it like you can’t get in trouble for defamation in that situation. Like I said, there’s a lot of nuances but it’s like written in a private journal, that’s not public information. But of course, if you write on your Facebook wall, or if you put an a tick tock video, all of those are public information. If you send an email to one person, that is actual publication. Now the next one, this typically is one element that gets debated a lot is the person being defamed was identified by the statement. And I believe this was a big point of contention in the Johnny Depp and Amber Heard case, because she wants I think she claimed something around. She didn’t identify him in the statements. But if there is enough information to where it can lead a person to conclude it is a certain person that does meet this element, this requirement for defamation. So if somebody is writing, like referring to a Facebook post, it’s easy. So we’re just going to keep referring to that. But if somebody says, Oh, this XYZ business owner, and they don’t, you have to say your name, but the owner of this business, did this to that identifying a person. But if they just say, Oh, this business that I went to, they did this, that may not amount to the person being identified. So you have to make sure that the person being defined is actually identified in the statement. 

Andrea Sager  05:44

Because if you read the post, and you’re like they’re talking about me, it doesn’t mean you’re actually being identified in the statement, you could just be giving your own self up. So you have to be very careful. Again, I’m giving you all of these because I cannot tell you how many people have come to me over the years, saying, like, Oh, I’ve been defamed, or is this defamation. So I just want to make sure all this is covered. But of course, if you ever believe defamation is going on, like 100% consult with an attorney. Now, the next one is the statement had a negative impact on the person’s reputation. So if you’re stating a fact, something that can be proven as true or false, and it is a false statement, but it doesn’t paint them in a negative light, that’s not defamation. So if somebody says about me, oh, Andrea was born on October the 12. My birthday is October the 11th. That is a false statement of fact, that I was born on October 12. But it doesn’t paint me in a negative light. So that can’t amount to defamation. So the next statement, I mentioned this kind of at the beginning, but it has to be demonstrably false. So it has to be a statement that can be proven as true or false, and it has to actually be false. So if it’s true, affirmative defense, the truth is an affirmative defense to a defamation claim. And basically, an affirmative defense means like, absolute, like, there’s

Andrea Sager  07:20

no way you can be held responsible for defamation, because this statement that you made that they’re trying to say defend you. It’s true. So even if you paint somebody in a negative light, you can’t be held responsible for defamation, if it is a true statement. That’s like saying, if somebody said, Oh, Andrew, I went and robbed a bank for a million dollars. And I want to say, hey, that’s defaming me because that paints me in a bad light. But I did go and rob a bank for a million dollars. Like that’s not defamation, because it’s a true statement, then the last element is the defendant is at fault. And this one is where I like to explain more, because I think I don’t remember if I mentioned this on the cancellation podcast episode, but the defendant is the person that is being sued. And it has to be them at fault. But they don’t have to be the one that made this statement. 

Andrea Sager  08:23

So and I’ve seen this happen many times, where whether it’s a business owner or somebody, they make a statement to people, and those people then go and defame someone else. The person that’s being sued, can just be the person that made that statement that caused all those other people to actually go and defame the plaintiff, the person that’s suing the person that was defamed. So, with this, how I see it play out a lot is a client will come to me and like, hey, is this infringement? And I’ll say, yeah, it is. And then we have to be really careful because like I talked about being canceled, you know, if they have an audience, you know, you have to be careful if that audience is going to pick up on you know, if they want to say something to their audience, like, hey, they came after just me, the small business owner, and then they their little corral comes on, it can be a huge mess. But let’s say, Okay, I approach someone and I’m like, Hey, you’re infringing on my trademark, please change the name. I have this trademark registration. And then the person that I went and told they post on their Facebook page, this nasty message that says, I can’t believe this I have to change my business name because this business owner they’re coming after me who’s just a very small business. I don’t know why they’re worried about me. 

Andrea Sager  09:52

I have to change my name or else they’re gonna sue me did it and then all their people are like, Oh my god, I can’t believe they would do that to you. Even though like They’re 100% in the wrong and sadly, I’ve seen this happen a number of times. So many like their people come along and then go after you and they start putting all these hateful messages, leaving you negative reviews, making all these defamatory statements. Instead of you having to sue every little person that made all those statements you can be can also just do the one person that made the statement that caused it, that helps you the plaintiff, and it’s also just another person that can just be held responsible for everything that happened to you. So it’s not necessarily the person that made the false statement. It’s the person that caused it. Hopefully that makes sense. So that’s the five elements, all five of these do have to be true and present when bring a defamation case. So to recap, has to be public information. So it has to be sent like shared with at least one person, the person being defamed has to be identified in that statement. It has to be have a negative impact on the person’s reputation. It has to be a false statement. And the person being sued the defendant the defamation has to be their fault. If you ever have questions about defamation, don’t hesitate to reach out. Always run it by an attorney and if you’re going through infringement or found somebody infringing you’re like I don’t know if I should reach out I’m not sure if you know this person’s a loud mouth like I hate when that happens. And if that’s happened to I’m so sorry, I hate those are like the worst kinds of people that want to go after you for just doing what’s right. Anyways, anyways, don’t hesitate to reach out. Let me know if you have questions. I hope this is helpful and 

Andrea Sager  11:42

I will see y’all here at Legalpreneur, we’re committed to providing a supportive legal community for all business owners. I know how scary the legal stuff can be. If you found this information helpful, I would be so grateful if you could share it with a fellow business owner. And quite frankly, it doesn’t cost anything to rate review or subscribe to the show. Your support helps me reach more listeners, which allows me to support more business owners in their entrepreneurial journey. Have any questions or comments about the show? Feel free to drop me a line on Instagram. I promise I read all of the messages and comments. And if you want to be a guest on the show or know someone that would make a great guest simply fill out our application form and a team member will reach out if we think it’s a good fit. I’ll see you in the next episode.