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Defamation Factors

Once a defamatory statement has been proven under one of the previous definitions of slander or libel, the victim must still prove the statement was both published and identified the victim. If the statement was made about a public figure, the victim must also prove malice. Similarly, if the victim was a private figure, but the subject matter of the allegedly defamatory statement was a matter of public concern, the victim would have to plead and prove at least negligence on the part of the alleged defamer.
(1) Publication. Publication simply means that the statement was understood by a third party in a communication that was not subject to one of the privileges discussed below. A single third party understanding the communication is sufficient to find liability. The statement, however, cannot have been relayed by the victim or the victim’s agent, unless the victim was under a strong external compunction to relay the information.
(2) Identification. To qualify as defamation, the statement must relate to a corporation, a partnership or a living person (deceased individuals do not qualify). The identification of the victim can either be a direct or indirect identification, such as through an inference, a general description of the victim, or in a roman a clef, where it is clear the publication relates to the victim.
(3) Damages. Although damages are presumed if the statement is libel per se, it is still advantageous to prove damages, not only to maintain the option of changing the cause of action to a claim for libel per quod, but also to increase the potential award. Damages in a defamation case can be shown through a detailed description of the victim’s prior reputation and the extent of the distribution of the defamatory statement. Associated damages may include loss of income, emotional distress, physical pain and suffering, medical bills for mental anguish, humiliation, and embarrassment.
(4) Malice. While proof of malice is not necessary in a case of libel per se, proof of malice is required for causes of action where the victim is a public figure. Additionally, malice must be shown if the victim is a private figure and the victim desires to obtain punitive damages. Actual malice typically means that the statement is made with knowledge that it is false, with reckless disregard for whether or not it is false.

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