Defamation is the act of publishing false and damaging statements about a person or business to a third party. Traditionally, defamatory statements have been separated into two categories: slander and libel.
The distinction between these two types of defamation is dependent upon how the false and harmful statement was published. Libel involves the publication of false statements in print or in a tangible form, while slander pertains to the publication of false statements through speech or the spoken word. An easy way to remember the difference is that “slander” and “speech” both start with the letter “s.”
While these two claims are almost identical in terms of the elements to be proven and potential defenses that can be raised, there are a few key differences between the two types of defamation. These differences may impact your ability to prevail on your claim and are important to understand before moving forward with any lawsuit arising from the publication of a false and damaging statement. Below, the Defamation Team at Buckingham explains the key differences between the two claims and how to best pursue each.
The Differences Between Libel and Slander
What Is Slander?
Generally speaking, slander is defamation that occurs through the spoken word. For example, if, during a private meeting, your colleague made a false statement to your boss claiming you forged a client’s signature on a document – that would be slander. Or, suppose you are the CEO of a company that designs medical devices and, at an industry conference, a competitor gives a speech claiming that you knowingly sold a device that hurt patients – that would also be slander.
What Is Libel?
On the other hand, libel occurs when a defamatory statement is published through writing or in another tangible form. If you adjust the facts of the first example and, instead of your colleague conveying the false statement in a private meeting with your boss, they send an email containing the same statement – that would be libel.
While libel was, historically, confined to statements made in written form, what constitutes libel quickly expanded with the advent of broadcast media, such as radio and television. While some courts have drawn distinctions between, for example, an impromptu remark during a radio or television broadcast (slander) versus a statement made based upon a pre-prepared script (libel), the general trend is to treat all defamation that is broadcast or conveyed in a modern electronic medium to be considered libel.
Likewise, defamation that occurs on the internet is generally considered libel because it appears in some tangible form and the potential for widespread dissemination of the false statement is significant.
It’s not uncommon for defamation cases to include claims for both slander and libel, especially when the person making the false and defamatory statement truly wishes to cause the subject harm. The defendant may initially make the false and defamatory statement during an in person conversation and then repeat it in an email or posting online.
Traditional Distinctions for Proving Damages
Courts traditionally drew a distinction between slander and libel because the harm arising from slander was considered to be less serious. Statements spoken out loud to a discrete number of people were viewed as being less harmful than those memorialized in print – a medium that allowed false information to be more broadly broadcast and that was felt to give additional authority to the false statement because it was committed to paper.
In cases involving slander, the plaintiff was historically required to prove the slanderous statement caused them to experience “special damages” – i.e., economic or financial loss – unless the statement fell into one of four categories:
- Allegations or imputations of criminal conduct
- Allegations of conduct that injured the plaintiff in his or her trade, business, or profession
- Allegations or imputations of loathsome disease, such as leprosy or a sexually transmitted infection
- Allegations or imputations of unchastity in a woman
Statements that fell within these categories were considered “slander per se” and found to be so inherently damaging to the subject of the statement that damages would be presumed, dispensing with the need to show economic loss. Conversely, the law traditionally did not require the proof of special damages in any libel case – regardless of the nature of the statement made.
However, today, most courts have done away with the distinction between slander and libel for purposes of proving damages, treating both slander and libel claims as “defamation” and setting forth the circumstances under which a plaintiff must plead and prove “special damages” and the circumstances under which damages can be presumed. As with the traditional doctrine of “slander per se” the requirement of proving special damages is dependent upon the content of the statement for libel as well. Some courts have adopted the traditional slander per se categories to establish what is considered “defamatory per se,” applicable to both slander and libel claims, and that will carry the presumption of reputational harm and negate the need to establish special damages.
In the end though, regardless of whether the claim sounds as slander or as libel, the plaintiff must establish damage has occurred, either through showing that the statement was harmful “per se” or through proving damages through extrinsic evidence and facts, including economic harm, reputational harm, and emotional distress.
Defenses to Libel and Slander
The defenses available to a Defendant in a libel or slander case are generally the same. A plaintiff in a libel and a slander case will have to show that the statements were false, and that they were not subject to any privileges. If the statements are subject to a privilege, or if the Plaintiff is a public figure, a Plaintiff will have to show that the false statements were made with actual malice.
Other typical defenses to these claims are that the statements are substantially true, that they were published with the allegedly defamed party’s consent, or that the claim has not been filed within the requisite statute of limitations. It may help to read up on how to deal with potential defamation accusations.
As it relates to a statute of limitations defense, it is very important to note that there are a small minority of jurisdictions that maintain a different statute of limitations for claims sounding in slander than those sounding in libel. For example, in Tennessee, slander actions are subject to a six month statute of limitations, while libel actions are subject to a one year statute of limitations. Other jurisdictions that maintain different statutes of limitations for slander and libel are Rhode Island (3 years for libel and 1 year for slander) and Arkansas (3 years for libel and 1 year for slander). Accordingly, if it is possible that the law of one of these jurisdictions could apply to your case, it is important to determine whether your claim sounds like libel or slander so you can ensure that your case is timely filed.
While there were significant differences between slander and libel, the distinctions are limited and largely confined to terminology, except in a few rare circumstances, such as the application of a different statute of limitations. With the advent of broadcast media, it became apparent defamation accomplished through the spoken word could be just as harmful as defamation accomplished by the written word. With the development of the internet and a wide variety of applications and platforms to spread both the written and spoken word further at a moment’s notice, this distinction is even less relevant as a predictor of damages or harm to the subject.
