The Law of Defamation in Delaware
A Delaware business owner recently asked me to explain the law of defamation. Defamation is a written or oral statement that harms the reputation of another person. To be considered harmful, the statement must lower the person in the eyes of the public or cause others not to associate or deal with him. We've all heard the words “libel” and “slander.” Libel is written defamation, and slander is oral defamation.
As a Delaware business attorney, I've found that there are defenses you can raise if you’re sued for defamation. The most absolute defense is truth. In other words, if a statement is true, you can tell as many people as you like even though the statement ruins a person’s reputation.
The average businessman is not the only one who becomes involved in a defamation lawsuit. Consider the following headlines you may have seen:
JERRY SEINFELD AND WIFE SUED FOR DEFAMATION
ROGER CLEMENS FILES DEFAMATION LAWSUIT OVER ALLEGATIONS OF USE OF PERFORMANCE ENHANCING DRUGS
WITNESS IN OJ SIMPSON TRIAL SUES DR PHIL FOR DEFAMATION
OPRAH SUED FOR DEFAMATION BY FORMER HEAD OF SCHOOL IN SOUTH AFRICA
DAN RATHER SUES CBS FOR DEFAMATION
In order for there to be defamation, the statement has to be made to someone other than the person the statement is about. In the law, this is known as "publication."
The person claiming that he was defamed has to prove that the statement he’s complaining about was in fact defamatory. However, there are 4 categories of statements that are automatically considered to be defamatory. They are statements that (1) malign someone in a trade, business or profession, (2) impute a crime, (3) imply that a person has a “loathsome” disease, and (4) impute the unchastity of a woman.
I mentioned earlier that truth is an absolute defense. There are also conditional privileges or defenses even if the statement turns out not to be true. For example, if you communicate to the police a suspected crime, that’s allowed. A statement that’s made in the course of the defamed person’s employment and it’s made on behalf of the employer, it’s considered privileged. Statements made by witnesses in a courtroom setting and the legal arguments made by attorneys in court are also privileged.
There are exceptions to everything, including exceptions. Under Delaware law, these conditional privileges must be exercised in good faith. So, even though a communication to the police is usually considered protected, there’s an exception if the statement was known to be false and it was made with malice or an intent to harm the defamed person.
