Understanding Slander
What is Slander?
Slander is a form of defamation that is actionable as a common law tort in which an individual makes an oral "publication" of a defamatory statement of and concerning the plaintiff that is heard by a third party resulting in damage to the reputation of the plaintiff.
What are the elements of a cause of action for Slander?
The elements of a cause of action for slander 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
WHAT IS A DEFAMATORY STATEMENT?
The Restatement defines a communication as defamatory "if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating with him."
What is a publication?
The legal term for publication; when discussing slander, is the purposeful, oral communication of information to a third party. The term does not mean that the statement need be published in print; which is libel, but can be an oral transmission as well.
DOES THE PUBLISHER NEED TO KNOW THE FALSITY OF THE STATMENT?
No, under slander law, the publisher of an oral statement need not know that a statement is false or defamatory. The law concerns the intent of the publisher in communicating a defamatory statement and is not concerned with the knowledge of the publisher. The law states that a publisher "knew or should have known" that the statement was false. Therefore, if an individual publishes a defamatory statement about someone; for example, that they have used drugs, while under the impression that the statement is representative of a positive characteristic, the publisher will be liable for defamation if that statement causes harm to the subjects character or reputation. This is because the publisher should have known that the communication was defamatory.
However, if the individual were to publish a statement that would not normally be considered defamatory; that the individual drives a station wagon for example, and unbeknownst to the publisher, the individual finds the idea of driving a station wagon insulting, there is an argument to be made that the publisher could not have known that his/her statement was defamatory and therefore not actionable.
DOES THE PUBLISHER HAVE TO INTENTIONALLY "PUBLISH" THE COMMUNICATION?
Yes, the law concerning defamation requires at least a negligence standard for publication. The publisher must communicate the information with the intent to have it heard by a third party. If an individual makes a slanderous statement when he/she reasonably believes that there is no one around to hear it and the statement is overheard by a third party then it is not slander.
The same applies to communications with the subject of slander. If an individual makes a slanderous statement about an individual but the injured individual is the only one the statement was communicated to then it is not actionable. The law requires publication to a third party.
Are there defenses to a claim of defamation?
There are 6 recognized defenses to a defamation suit. These include:
· Truth – the truth of a statement is a complete defense to any slander claim. For example, if an individual publishes a statement stating that smoking tobacco can lead to emphysema a tobacco company may not sue on a defamation claim because the statement is true.
· Opinion – if a person makes a publication under the color of an opinion it may be deemed un-actionable. The law regarding opinion is not black and white. Opinion statements can be actionable if the public who the statement was published to would believe that the publisher is a credible source and his statement should be taken as truth. For example; if an individual's states that he believes that someone is a cheater it is more likely to be taken as truth if that individual is the person's teacher rather than if the statement were made by an enemy of the individual.
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· Consent – If a publisher has the authority, from the injured individual, to make a statement it will be an absolute bar to a slander action. However, the publisher may not go beyond the scope of consent.
· Poor reputation – Although this is not a complete defense to slander, the defendant can mitigate damages by proving that the defamed individual had a bad reputation for the character trait at issue. For example, if defendant state, openly, that the plaintiff was a cheater, the fact that the plaintiff had been caught cheating in the past would go to the plaintiff's bad character for that trait and may mitigate damages.
Slander Per Se
Slander per se means "slander on its face." These are false statements that are inherently harmful to one's reputation and character that they do not need to be proven. Most states in the Union recognize some form of slander per se. The common examples of slander per se include: statements that injure another's reputation in his trade, business or profession; statements claiming someone has a "loathsome disease"; statements claiming that a person is "unchaste"; and allegations that an individual has been involved in criminal activity.
Internet slander
There is technically no such thing as internet slander. Slander involves the communication of an oral defamatory statement. Internet communication is primarily published material from instant messaging, e-mails, blog posts and internet forums. With the advent of Skype and other internet oral communication forums there is a greater opportunity to commit slander, as opposed to libel. Slander over the internet can be difficult to find actionable. The plaintiff must determine that the defendant was actually the one making the statement. As with any form of tele-communication it is difficult to conclude that the person believed to have made the statement is the one who actually did it.
Filing a slander lawsuit
Winning a Slander lawsuit can be quite difficult. 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 "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.
Even more difficult will be proving that the statement was said. 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.
Finally, a victim of slander must prove financial damage. Slander is considered to be a minor civil violation and as such the courts require that some real harm, other than emotional be proven. If an individual was fired from his job he must prove that he was terminated because of a slanderous statement and that it was not due to ineptness, under qualification or any other bona fide reason.
Slanderous statements do not have the same impact, and do not have the longevity, of those that are communicated through a written communication. If an individual cannot prove that they have suffered financial loss then one may receive a nominal award of $1 or so.
Slander cases
In 1989 the case of Guinn v. Church of Christ of Colinsville resulted in a verdict for the defendant in the amount of $340,000. The case involved the statement of a minister in front of his entire congregation that the plaintiff was a lesbian. The statements were deemed untrue by a jury. The statements were defamatory but in a slander case the plaintiff must prove economic damage. In addition to the charge of being a lesbian the claim also insinuated that the plaintiff was cheating on her husband. This falls under the heading of slander per se because it accused the woman of being "unchaste." Therefore, no specific financial loss was required.
In another case that goes to the financial loss requirement of slander a surgeon won an $88,000 jury award when his business reputation was damaged do to slanderous statements made regarding his practice. The defendant in the case made disparaging remarks telling prospective patients and members of the medical community that the plaintiff was not a viable anesthesiologist. Because of this the plaintiff was able to prove that the statements caused him to lose business and financial loss.
