Libel and slander are different types of defamation. Generally speaking, “defamation” is defined as the publishing of one or more false statements which damages a person’s reputation or business.

Libel involves written false statements including photographs, cartoons, and other forms of printed or online content. On the other hand, slander involves oral false statements including gestures. Both natural persons and artificial legal entities — like corporations — can be the target of defamation. Victims of defamation can sue in both state and federal courts and can obtain money damages as compensation for the injuries suffered to their reputation, livelihood and business. In some circumstances — like revenge porn posted on the internet — libel and/or slander can lead to criminal punishment. Since the rise of the internet, there has been a huge uptick in the number of defamation cases. This is partly because the “publishing” requirement is now so easy to accomplish. Just hit “send” and a false statement can literally reach millions of people.

The legal rules for proving defamation are complicated because the rules vary slightly from jurisdiction to jurisdiction, there are two types of slander and there are special rules for proving defamation when freedom of speech and press considerations are present. That being said, generally, a victim of defamation must prove the following legal elements:

• A statement (oral or written) was made to another — published
• The statement was false — not just mean-spirited or an opinion, but objectively false
• The false statement was at least made negligently — that is, without knowledge of whether the statement was true or false
• The false statement caused harm to the target’s reputation, livelihood or business dealings

As noted, there are two types of slander. “Normal” slander must be shown with proof of the four elements listed above. The other category of slander is called slander per se. In general, slander per se involves false statements involving the following:

• Claims that a person or business committed a crime of moral turpitude or, sometimes, any type of crime
• Statements that imply lack of chastity
• Claims that the target suffers from a loathsome disease
• Statements related to the target’s business or profession

Slander per se is easier to prove. If the case involves one of these types of per se defamatory statements, the final legal element — proof of harm — need not be proven. These types of defamatory statements are presumed by the law to be injurious.

In some circumstances, proving defamation is more difficult. Typically, these circumstances involve public figures or circumstances where freedom of speech or of the press are involved. In these kinds of cases, to prove defamation, the target must show more than negligent publication of a false statement. The target must prove that the false statement was made with actual knowledge that the statement was false or that the statement was made with reckless disregard for the truth of the statement.

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The Historical Distinction Between Libel and Slander

The common law distinction between libel (written defamation) and slander (spoken defamation) developed in medieval English ecclesiastical courts before migrating to common law courts. Historically, libel was considered more serious because written words were permanent and more widely disseminated. Modern courts have largely maintained this distinction, though the rise of online speech has blurred the line—courts in most jurisdictions treat defamatory online posts as libel rather than slander because of their permanence and mass dissemination.

The practical legal significance of the distinction is most pronounced in the damages analysis. Slander requires proof of “special damages”—specifically quantified economic harm—unless the statement falls into the per se categories. Libel, by contrast, presumes general damages in most jurisdictions without proof of specific harm, reflecting the historical view that written defamation is presumptively more harmful.

The Four Categories of Slander Per Se

Slander per se encompasses statements so inherently injurious that courts presume damage without requiring the plaintiff to prove specific economic loss. The four traditional categories are:

• Crimes of moral turpitude — Falsely accusing a person of committing a crime punishable by imprisonment or involving moral turpitude (e.g., falsely saying someone committed theft, fraud, or sexual assault).
• Loathsome diseases — Falsely claiming that a person has a sexually transmitted disease or other stigmatizing condition. This category has been limited in modern courts as social attitudes toward certain conditions have evolved.
• Business or professional incompetence — False statements that tend to injure a person in their trade, profession, or business. For example, falsely claiming that a licensed contractor routinely does substandard work, or that a doctor’s medical license was revoked.
• Unchastity — In many jurisdictions, falsely imputing sexual misconduct to a woman. This category is recognized in some states but has been largely abandoned or gender-neutralized in others.

Defamation of Public Figures and the Actual Malice Standard

As discussed above, the applicable fault standard in defamation cases turns on whether the plaintiff is a private individual or a public figure, and whether the speech involves a matter of public concern. Public officials and public figures—those who have voluntarily injected themselves into a public controversy or who have pervasive fame—must prove actual malice under New York Times v. Sullivan: knowledge of falsity or reckless disregard for the truth. This is a demanding standard that insulates significant amounts of speech from defamation liability.

Even private figures suing over matters of public concern may face heightened constitutional requirements in some jurisdictions. Under Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), states cannot impose liability without fault even for private plaintiffs, and presumed or punitive damages require a showing of actual malice.

Truth as an Absolute Defense

Truth is an absolute defense to defamation in all U.S. jurisdictions. A defendant who can prove that the challenged statement is substantially true prevails regardless of how damaging or embarrassing the statement may be. “Substantially true” means that the “gist” or “sting” of the statement is true, even if minor details are inaccurate. Defendants in defamation cases should immediately evaluate what documentation and evidence are available to support a truth defense—contemporaneous records, communications, photographs, and witness statements can all be dispositive.

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If you have questions about the issues discussed in this article, contact the experienced attorneys at Revision Legal. We handle intellectual property, internet law, and business law matters for clients across the country. Contact us online or call us at 1-855-RL-LEGAL.