In the rumour and gossip mills in schools, at work and online, the dark side of human nature draws us to the misfortune or purported bad acts of others. It is the stuff of supermarket tabloids, whispered innuendo in gym locker rooms and pillow talk between partners. But when does it become slander? Is slander the same as libel? In Fact, What is Slander?
Answering the question: what is slander?
Black’s Law Dictionary defines slander as:
The speaking of base and defamatory words tending to prejudice another in (his or her) reputation office, trade, business, or means of livelihood…; the speaking of false and malicious words concerning another whereby injury results to (his or her) reputation.”
Defamatory means “injurious to reputation,” and tend to hold up a person “to ridicule, scorn or contempt in…the community.” Defamation includes slander and libel.
What is the difference between slander and libel?
Basically, slander is the oral part, but libel, again, according to Black’s Law Dictionary, is:
A method of defamation expressed by print, writing, pictures, or signs…A false and unprivileged publication in writing of defamatory material…which tends to blacken a person’s reputation or expose (that person) to public hatred, contempt or ridicule…
So slander and libel are the same things but in different forms. For slander, think “spoken.” For libel, think “written.”
Some examples of slanderous or libellous communications
- A false accusation that suggests someone was involved in a serious crime or felony.
- A communication exposing someone to ridicule or reflects negatively on the character, morality or integrity of that person
- A communication that harms the person’s wellbeing
- A communication suggesting that a person has some physical or mental defect causing others to avoid or refrain from associating with the person
What must be established in a lawsuit for slander?
What is slander in the eyes of the injured party does not always meet the objective criteria of the law. United the United States, for example, there are certain facts that have to be established for someone to be held to account for slander or libel:
- that the person accused of slander actually made the statement
- that the statement was actually false and defamatory
- that the communication was unprivileged — e.g., not between a lawyer and his client or a doctor and his patient, or otherwise protected by law
- that the person uttering the slanderous words was at fault amounting to at least negligence, and at most maliciousness
Ramifications of slander and libel in cyberbullying
First Amendment expert Julie Hilden wrote about one fascinating defamation case where a 14-year-old Atlanta girl named Alex sued two of her classmates for libel. Classmates set up a fake Facebook page in the girl’s name. The page suggested that she smoked marijuana and “spoke a made-up language called “Retardish.”
The prank got worse: The girls set up the page to simulate obscene comments on other classmates’ pages, “made frequent sexual references and posted a racist video.” Then the fake authors posted derogatory remarks about Alex.
Surprisingly, the youngster’s case wasn’t all that strong, because actual damages became a difficult issue. To wit, according to Hilden:
Even fourteen-year-olds surely know that a classmate’s personality does not completely change in a short period of time, such that a once-normal person is suddenly posting highly offensive material.
Her best bet, in this case, might be for her lawyers to focus on the false claim that she smoked marijuana.
In another case, three classmates of a Houston girl chose the wrong victim when they libelled her on Facebook. They posted a video of themselves on Facebook making false sexual accusations against the girl. The girl’s father was an attorney. The case was settled when the girls apologized and made a small donation to an organization that fights against cyberbullying.
What parents should know and do
When is online harassment outright defamation? According to Hilden’s piece, if parents plan to go the litigious path, they need to “keep in mind that defamation law has certain clear limits.” Specifically:
- Even the meanest and most offensive Facebook and Twitter opinions about a sensitive teenager are assumed to be protected by the First Amendment.
- Mocking — so-called “rhetorical hyperbole” — won’t stand up as the basis of a defamation claim. In the example where the girl Alex was said to speak “Retardish.” By implication, one could infer an insinuation that Alex is not too bright, but the law requires a “false statement of fact.” Insinuations are not sufficient.
- Libel cases can boomerang on defendants. Plaintiffs living in one of the states that have passed anti-SLAPP laws could end up the defendant’s attorney fees and costs. Although Anti-SLAPP statutes were never intended to cope with cyberbullying, many are broad enough to discourage such lawsuits.
Bullied Kids can Sue on their own
Even without parental consent, some bullied teens can sue independently. It gets a bit complicated and the teen needs to get what is referred to as a guardian ad litem in order to file suit.
Say the parents don’t want to get involved in litigation that the teen strongly feels is necessary. For example, the parents may have problems with the teen’s sexual orientation. (About 9 out of 10 such teens are victims of bullying — cyber and otherwise.)
Certainly, it is most preferable that parents fully participate in combating online defamation of their teenagers. When the teen’s basic human right to be treated with respect and to be safe is threatened by the slanderous activity of others, it may be time for the intervention of advocacy groups like the Florida Guardian ad Litem (GAL) Program.
It all comes down to this —
The offence is going forward with a lawsuit for defamation — slander or libel — knows the defence. If harm comes from the truth of something, that “something,” unfortunately cannot be proof of slander. What are slander and libel is all about falsehood and the actual harm it causes.