Defamation – Slander and Libel

Defamation and invasion of privacy in Montana

“To spread suspicion, to invent calumnies, to propagate scandal, requires neither labour nor courage. It is easy for the author of a lie, however malignant, to escape detection, and infamy needs very little industry to assist its circulation.”

– Samuel Johnson: Rambler #183 (December 17, 1751)

What is defamation?

“Defamation” is either libel or slander. M.C.A. 27–1–801. Written words and pictures are considered “libelous,” while spoken words are called “slander.” Generally, defamatory radio and television broadcasts are considered to be libel, rather than slander. Libel or slander is said to have occurred when it is “published,” that is, when it is printed, or said.

“Libel” is a false and unprivileged publication by writing, printing, picture, effigy, “or other fixed representation to the eye” that:

1.  exposes a person to hatred, contempt, ridicule or obloquy; or

2.  causes him to be shunned or avoided; or

3.  has a tendency to injure him in his occupation. M.C.A. 27–1–802.

"Slander" is a false and unprivileged publication – other than libel – that:

1.  charges a person with crime, or with having been indicted, convicted, or punished for crime; or

2.  imputes in him the present existence of an infectious, contagious, or loathsome disease; or

3.  tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit; or

4.  imputes to him impotence or want of chastity; or

5.  by natural consequence causes actual damage. M.C.A. 27–1–803.

A libel or a slander is committed every time the false statement is repeated by its original maker or by another person, even though that person is repeating the defamatory statement accurately. Multiple copies of a publication containing a defamatory statement do not create multiple publications of the defamatory statement, because the entire edition of a periodical, book, broadcast, or other similar publication is treated as a single publication.

What will the court look at?

If the average reader or listener would regard the language or image as defamatory, then it can be libelous or slanderous even though it might also have an innocent meaning. That average person has to understand the defamatory meaning and know it is referring to the plaintiff. In Court, the statement or image must be viewed as a stranger might look at it, without the aid of whatever special knowledge is possessed by the parties concerned.

The alleged defamation is to be interpreted in its entirety, and not merely taken out of context. Further, the language must be susceptible of but one meaning, and, for defamation to be found, that meaning must be an opprobrious one.

Newspapers can be held liable for libel if the story contained inaccuracies that harmed the reputation of a person or a business. But if they are merely reporting the false statement and had no particular reason to doubt the statement at the time it was printed, they’ll avoid liability.

It is also possible for a plaintiff to bring a defamation suit where the plaintiff himself repeats the defamatory statement. This is called self–publication, and it can occur, for example, when the plaintiff applies for a job and must tell his prospective employer about something the previous employer said that was false.

Public figures have a harder case to prove because a publication about public officials and candidates –– even if false and untrue – are absolutely privileged UNLESS they can show:

1.  the party defaming them knew that the statements were false; or

2.  they made the statement with reckless disregard for the truth; or

3.  the defaming party had serious doubts about the truthfulness of the statement at the time he made it.

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