The Restatement (Second) of Torts defines a statement as defamatory if it tends to harm someone’s reputation thereby lowering him or her in the estimation of the community or deterring others from associating with them. Defamation requires proof that the statement was published or communicated to someone other than the plaintiff. In general the statement must contain some element of disgrace.
There cannot be accident; there must be intent to harm. This leaves many questions for writers who choose “based on true” event type stories. When the plaintiff is a part of the group, or a part of the crime he or she will have a very difficult time recovering form a defamation suit.
Here are some questions often asked about defamation.
Q. What if the statement is false?
A. It does not matter if the statement is false. Did the statement have the “intent” to harm? If a statement is substantially true it is considered true. However, true does not hold the threshold for defamation, it does however hold a threshold for public domain. However, if the statement is false, there are more options for the plaintiff.
Q. What if the statement is true?
A. If the statement is true the plaintiff will have to prove the intent to harm? The plaintiff will still have to prove the “threshold” question. Did the defendant intend to harm? If the story is reported in the news, in court cases and the public and the work is “substantially true” then the plaintiff will have a difficult time proving defamation.
Q. What if the story is a documentary?
A. Documentary helps and implies that you are reporting on true events that are in the public domain.
Q. What about true crime stories or criminals?
A. Criminals are rarely defamed especially if the story is reported and is public domain. The defendant might have to prove reckless disregard, malice or something such as this IF the case gets standing to sue.
Q. Can a dead person be defamed?
Q. What is the difference between slander and libel?
A. Slander refers to speech and libel refers to writing. Publication means that a statement is seen or heard by another person when it comes to defamation.
Q. Are public figures be defamed?
A. They can be, but only with malice or reckless disregard. A person who puts their life into public publicity looses some Rights of Privacy. The Right to Privacy disappears with death.
Q. Does public interest diminish defamation?
A. Yes public interest to tell or learn the story has a great affect on the slant of defamation. If the story is reported in the public or in court, it is considered public information for report, criticism, public works of recreation and the Fair Use Doctrine.
Q. Does it matter if my project or writing is commercial or paid for?
A. No, commercialism or commerce regarding the work has no bearing on defamation; if the story is public domain, it is pubic domain.