Defamation laws vary across the nation from state to state. Yet, there are some common rules across the board. To prove you have been defamed, the statement the defamer made would have to have been:
- Published
- False
- Harmful
- Unprivileged
Publication requirement: The defamer must have published defamatory content about you or your business. The publication can include a wide array of forms such as books, blogs, newspapers, magazines, radio shows, social media posts, podcasts, and more. The courts assume that if a third party can understand the meaning of the statement, it has been published by all intents and purposes.
False requirement: The statement made about you or your business must be objectively untrue. However, if the statement made was true, it cannot be considered defamation, regardless of how harmful it may have been. Even if the statement has some inaccuracies, substantive truth is still considered truth when it comes to defamation under the law. Furthermore, opinion is protected under the First Amendment because it is understood that there is no such thing as a "false idea." When litigating, an opinion can only be defamatory if the person(s) hearing the opinion believes it is based upon fact.
Harmful requirement: The plaintiff in a defamation case must prove harm came to his/her/its reputation due to the defendant's false statements and has resulted in damages. In a civil case, damages is a term that refers to compensation. Depending on the state where the claim is filed, the type of damages may include:
- Compensatory: Compensatory damages are actual losses such as loss of business, lost bonuses, lost clients, or additional expenses from the defamation of character. Additionally, emotional damage or a damaged reputation can be compensated.
- Punitive: Punitive damages may be awarded if the plaintiff can prove the defendant acted with the intention to harm or malice.
- Nominal: Nominal damages are awarded when the plaintiff can prove they were the victim of defamation but can't define the harm they've suffered. Nominal damages are means for the court to recognize the victim's rights were violated.
Unprivileged requirement: In most states, courts will recognize that some forms of communication cannot be considered in a defamation lawsuit because of the setting. Some example settings of privileged communication are judicial proceedings, executive actions, and official proceedings such as a police interview. However, suppose after providing testimony in court, a person makes further comments to the press in the hallway. In that case, those comments could be considered unprivileged and used in a defamation case.