Libel vs. Slander: The Difference, Elements and Defenses

Libel and slander are the two forms of defamation: a false statement of fact, communicated to someone else, that harms another person's reputation. Libel is defamation in a written or other fixed form, such as a newspaper article, a letter or a social media post. Most courts also treat broadcasts as libel, though a few states' statutes (California's, for example) classify radio broadcasts as slander. Slander is spoken and fleeting, such as a remark at a meeting or a comment over the phone.

The difference used to matter a great deal, because slander was harder to sue on. It still matters for damages in many states, but the bigger questions in modern cases are whether the statement was false, whether it was a statement of fact or opinion, and whether the person suing is a public figure.

Libel vs. slander at a glance

	Libel	Slander
Form	Written, printed or otherwise fixed (and, in most states, broadcast)	Spoken or otherwise transitory
Examples	An article, a review, an email, a tweet	A comment at a party, a statement in a phone call
Proof of harm	Traditionally presumed, though many states require proof of special harm for libel that is not defamatory on its face (libel per quod), and the First Amendment limits presumed damages	Usually requires proof of special (economic) harm, unless it is slander per se
Elements otherwise	Same: false defamatory statement, publication, fault, harm

The elements of defamation

The Restatement (Second) of Torts § 558, as quoted by Maine's highest court in Lester v. Powers (1991), lists four, which break down into five working elements:

(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

1. A false statement of fact. True statements are not defamatory, however damaging. The statement must also be about the plaintiff, identifiably.
2. Defamatory meaning. It tends to harm the plaintiff's reputation in the community, for example by suggesting dishonesty, crime or incompetence.
3. Publication. It was communicated to at least one person other than the plaintiff. Telling someone an insult to their face, with no one else present, is not defamation.
4. Fault. At least negligence for private plaintiffs in most states; "actual malice" for public officials and public figures (below).
5. Harm. Either the statement is actionable without proof of special harm (traditionally libel, and slander per se), or the plaintiff proves special harm, meaning a specific economic loss.

Slander per se

For most slander, the plaintiff must prove a concrete economic loss. The exception is slander per se. As the Colorado Court of Appeals summarized it in Gordon v. Boyles (2004), the traditional categories are statements imputing "(1) a criminal offense; (2) a loathsome disease; (3) a matter incompatible with the individual's business, trade, profession, or office; or (4) serious sexual misconduct." For these, harm is presumed.

Public figures and actual malice

The First Amendment changed defamation law in New York Times Co. v. Sullivan (1964). An Alabama official sued over a civil rights advertisement that contained some factual errors. The Supreme Court held that a public official cannot recover damages "for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice,'" which the Court defined as made "with knowledge that it was false or with reckless disregard of whether it was false or not."

"Actual malice" does not mean spite. It means the speaker knew the statement was false or seriously doubted its truth. Later cases extended the rule to public figures. In Gertz v. Robert Welch, Inc. (1974), the Court held that private individuals need not prove actual malice. States may set their own standard so long as they do not impose liability without fault (most chose negligence), but they may not allow presumed or punitive damages without actual malice. In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985), the Court allowed presumed and punitive damages without actual malice where the statement was not on a matter of public concern.

Plaintiff	Fault the plaintiff must prove
Public official or public figure	Actual malice: knowledge of falsity or reckless disregard
Private individual, matter of public concern	At least negligence (states choose), and actual malice for presumed or punitive damages
Private individual, private matter	Set by state law, usually negligence; presumed and punitive damages available without actual malice (Dun & Bradstreet)

Defenses

• Truth. Substantial truth is a complete defense. Minor inaccuracies do not make a statement defamatory if the "gist" is true.
• Opinion. Pure opinion that cannot be proved true or false is not actionable. But labeling something "opinion" does not protect it. In Milkovich v. Lorain Journal Co. (1990), the Supreme Court said its earlier language was not "intended to create a wholesale defamation exemption for anything that might be labeled 'opinion.'" "In my opinion, John stole from the company" still asserts a fact.
• Privilege. Statements made in court proceedings, if related to the case, and in legislative debate are absolutely privileged. Many other statements, such as job references and, in most states, reports to police, have a qualified privilege that is lost if abused.
• Consent and, in some states, a retraction that limits damages.
• Anti-SLAPP laws. Many states let defendants seek early dismissal, and sometimes attorney's fees, when a defamation suit targets speech on a public issue.

Online posts and Section 230

A defamatory post, review or tweet is treated as libel in most courts, because it is fixed in writing. The person who wrote it can be sued. The platform usually cannot: under 47 U.S.C. § 230(c)(1), "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." That protection does not cover content the platform itself creates or helps develop, in whole or in part.

Worked examples

Example 1: the fake review

A former employee posts a review of a restaurant saying "the owner was arrested for selling spoiled meat." It is false. That is libel (a written post), a false statement of fact, published to the public, about an identifiable person, imputing a crime. If the owner is a private figure, they need to prove at least negligence for actual damages. Because food safety is a matter of public concern, they would need actual malice to recover presumed or punitive damages.

Example 2: the office rumor

At lunch, Kim tells two coworkers that their manager "is sleeping with a client to win contracts." It is false. That is spoken, so slander, but it reflects on the manager's fitness for her job and, in many states, counts as serious sexual misconduct (Colorado treated an extramarital affair claim that way in Gordon v. Boyles). So it is likely slander per se, and harm is presumed.

Example 3: the harsh opinion

A food critic writes that a new restaurant's pasta "tastes like cardboard and the service is painfully slow." That is opinion and rhetorical exaggeration about a performance offered to the public. It is almost certainly not defamation, even if the owner loses business.

How it shows up on the exam

• Classify the plaintiff first: public official, public figure, or private person. It sets the fault standard.
• Fact or opinion? Use Milkovich: can the statement be proved true or false?
• Libel or slander? Then ask whether special harm must be proved, and whether a per se category applies.
• Publication to a third party, and whether a privilege applies.
• Do not forget truth as a complete defense, and Section 230 for online platforms.

If this happened to you

• Save the evidence now. Screenshot posts with dates and URLs, and write down who heard a spoken statement and when. Posts can be deleted.
• Truth and opinion are common defenses. A hurtful but true statement, or a genuine opinion, is usually not defamation.
• Deadlines are short. Many states give one or two years from publication to sue for defamation, shorter than for many other claims.
• Consider other options. Platforms often remove content that breaks their rules, and a demand letter or retraction request may resolve things faster than a lawsuit.
• Be aware of anti-SLAPP laws. In many states, suing over speech on a public issue can expose you to paying the other side's legal fees if you lose.
• This is general information, not legal advice. A lawyer licensed in your state can assess your claim. Your state or local bar association can usually refer you to one.

How England and India treat it

England and Wales keep the libel and slander distinction and, since the Defamation Act 2013, require serious harm. Section 1(1) provides: "A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant." For a body that trades for profit, such as a company, harm is not serious unless it has caused or is likely to cause the body "serious financial loss."

India treats defamation as both a tort and a crime. The Bharatiya Nyaya Sanhita, 2023, defines criminal defamation in section 356 (formerly sections 499 to 502 of the Indian Penal Code), with exceptions for truth for the public good and good-faith opinion, among others, and punishment of simple imprisonment up to two years, a fine, or both, or community service. In Subramanian Swamy v. Union of India (2016), the Supreme Court upheld the constitutional validity of criminal defamation under the predecessor provisions, sections 499 and 500 of the Indian Penal Code.

Related reading

• Intentional infliction of emotional distress
• Assault vs. battery
• Essential elements of tort

Sources

• Restatement (Second) of Torts § 558, as quoted in Lester v. Powers, 596 A.2d 65 (Me. 1991)
• Restatement (Second) of Torts § 570, as summarized in Gordon v. Boyles, 99 P.3d 75 (Colo. App. 2004)
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)
• Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985)
• Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990)
• 47 U.S.C. § 230
• Defamation Act 2013, s. 1
• Bharatiya Nyaya Sanhita, 2023, s. 356; Subramanian Swamy v. Union of India (2016)