Law Offices of McEldrew and Fullam, P.C.

Protecting a Good Reputation

The law of defamation exists to provide some protection to a person's deserved good reputation. What is a person's reputation? It is the esteem to which the person is held or regarded by others. Every person who does good and does not cause harm to others tends to develop a good reputation. It is good to have a good reputation. Others may reasonably rely on a person's good reputation in dealing with that person. It is wise to prefer to do business with a person who has a good reputation.

Unfortunately, having a good reputation is not a guarantee of a person's goodness. Some people who have a good reputation do not deserve it. They do not deserve to have a good reputation because it is not generally known that they have not done good, that they have caused harm to others, or that although they once did good and did not cause harm to others, but they now don't do good, cause harm to others, or both. As a general rule, apart from considerations of mercy and propriety, it is a good thing to tell the truth about those who have an undeserved good reputation. Doing so brings light to an area that was previously in darkness. Unfortunately, some people make false statements about persons who have a deserved good reputation. Doing so brings darkness to an area where previously there was light.

Defamation: Libel and Slander

The law of defamation consists of two torts: libel and slander. Both libel and slander involve the making of a false statement about a person to others, thereby causing harm to the person's reputation. In other words, both libel and slander involve a person being lied about and damage to the person's reputation as a result. If, for example, someone says that you are a crook, and you are not a crook, the false statement that you are a crook, harming your deserved good reputation, is defamatory.

Defamation has the following basic elements: (1) making a false statement (2) about a person (3) to others, and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. The person who made the statement has to have made the statement with a known or reckless disregard of the truth, known as actual malice. In some states, the elements of defamation must be proved by clear and convincing evidence.

Libel is making a defamatory statement in writing or some other permanent form, such as a newspaper, web site, or scripted radio or television broadcast. Slander is making a defamatory statement orally or in some other non-permanent form, such as in conversation or by gesture. The main distinction between libel and slander is a matter of evidence. In a libel case, the permanent record, if not lost or misplaced, allows the judge and/or jury to review exactly was said. In a slander case, the judge and/or jury must rely on witness testimony to determine what, if anything, was said.