Defamation - Elements

When someone makes false statements (written or verbal) about another person or company that can be proven to be factually untrue and cause harm, it may be considered defamation.

Two common types of Defamation cases:

• Defamation per se: involves statements that are inherently harmful to a person's or company's reputation, where the defamatory character of the statement is apparent. In these cases, harm is presumed without the need for additional proof.

  See claims for defamation per se.

• Defamation per quod: involves statements that may not be inherently defamatory, so the Plaintiff must provide additional evidence to demonstrate that the false statements caused harm. In addition, harm is not presumed – instead, the Plaintiff must prove actual harm and damage caused by the defamatory statement.

  See claims for defamation per quod.

Elements of Defamation per se

To win a Defamation per se case in court, you need to show that the following legal elements are true: 

1. Defamatory Statement: The Defendant's statement(s) was a statement of a false fact about you, or a statement containing an implication of a false fact about you. If the statement does not mention you by name, it must be proven that it was made concerning you.
2. Publication: The Defendant made the statement to a person or persons other than you.
3. Identification: This person or these people reasonably understood that the statement was about you. 
4. Interpretation Leading to Identification (if the statement is not obviously defamatory): This person or these people reasonably understood the statement to mean that [insert grounds for defamation, e.g., “the statement falsely alleges that you had committed a crime”].
5. State of Mind: The Defendant failed to use reasonable care to determine the truth or falsity of the statement. However, if the Defendant argues that their statement is protected by a privilege, this element instead requires proof that the statement was made with malice.
6. Damages: You may recover different types of damages based on what you can prove: 
   • Actual Damages: If you can prove the above elements, you are entitled to recover your actual damages if you also prove that the Defendant’s wrongful conduct caused harm to your property, business, trade, profession, or occupation; expenses due to defamatory statements; harm to your reputation; or your shame, mortification, or hurt feelings.  
   • Assumed Damages: If you cannot prove actual damages but can prove the elements above, the law assumes you have been harmed and are automatically entitled to a nominal sum of money (unless the statement is not obviously defamatory).
   • Punitive Damages: If you can prove by clear and convincing evidence that the Defendant acted with malice, oppression, or fraud, you may also recover damages to punish the Defendant.  

Elements of Defamation per quod

To win a Defamation per quod case in court, you need to show that the following legal elements are true: 

1. Defamatory Statement(s): The Defendant’s statement(s) was a statement of a false fact about you, or a statement containing an implication of a false fact about you.  If the statement does not mention you by name, it must be proven that it was made concerning you.
2. Publication: The Defendant made the statement to a person (or persons) other than you.    
3. Identification: This person reasonably understood that the statement was about you.  
4. Interpretation Leading to Injury: Because of the facts and circumstances known to the listener(s) or reader(s) of the statement(s), the statement tended to: injure you in your occupation; expose you to hatred, contempt, ridicule, or shame; or discourage others from association or dealing with you.  
5. State of Mind: The Defendant failed to use reasonable care to determine the truth or falsity of the statement (however, if the Defendant defends that their statement is protected by a privilege, this element instead requires proof that the statement was made with malice). 
6. Damages: You may recover the following types of damages, depending on what you can prove:
   • Actual Damages: If you can prove the above elements, you are entitled to recover your actual damages if you also prove that the Defendant’s wrongful conduct was a substantial factor in causing harm to your property, business, trade, profession, or occupation; expenses you had to pay as a result of the defamatory statements; harm to your reputation; or your shame, mortification or hurt feelings.
   • Punitive Damages: If you can prove by clear and convincing evidence that the Defendant acted with malice, oppression, or fraud, you may also recover damages to punish the Defendant.

Learn more about Defamation cases.