Personal Injury Law
What are the required elements of a defamation claim?
The necessary elements of a defamation claim are identification, publication, defamatory meaning, falsity, a statement of fact, and damages. Identification means that the plaintiff must show that the publication was about or “of and concerning” the plaintiff. Most of the time this is an easy requirement for defamation plaintiffs. If a publication says that “David Hudson, the author of The Handy Law Answer Book, is a sex offender,” the identification requirement has been met easily.
However, what if a work of fiction contains several identifying characteristics similar to a real person? The real person may file a defamation action, claiming that many people would reasonably understand the fictional character to be based on him. Believe it or not, many defamation suits have been filed against publishers of works of fiction.
Publication means that the defamatory information has been conveyed to two or more people. This element is usually easily satisfied.
The language in question must be capable of having a defamatory meaning. Some language that you think may be fine may actually be defamatory. One publication found this out when it included a review of an attorney that called that attorney “an ambulance chaser.” A reviewing federal court determined that the term “ambulance chaser” was defamatory, because ambulance chasing involved direct solicitation of clients in violation of attorney professional rules of conduct. In essence, by calling an attorney “an ambulance chaser,” the publication said that the attorney violated rules of professional conduct.
Falsity is another requirement, as truth is a defense to a defamation action. If person A says that person B “is a sex offender,” B cannot recover if he really is a sex offender. The final requirement is damages. A person generally has to show that the defamatory statements caused them some type of harm.