Defamation Elements, Fault Standards and Privileges

Defamation is the tort that protects reputation, and it is the one tort where the First Amendment has rewritten the common law from the ground up. Whether a plaintiff recovers depends less on how badly the statement hurt and more on who the plaintiff is, what the statement was about, and whether it was written or spoken.

This guide sets out the five elements, explains the three-track fault system created by New York Times Co. v. Sullivan and Gertz v. Robert Welch, distinguishes libel from slander for damages purposes, and works through the defences and privileges that decide most real cases.

Diagram of the defamation cause of action showing the elements false statement of fact, of and concerning the plaintiff, publication to a third party, and fault plus damages, with panels on the three-track constitutional fault system and the four slander per se categories, plus cards on truth, absolute privileges, qualified privileges and the libel versus slander damages split. — The five elements, the constitutional fault tracks, the slander per se list and the privileges that end most claims.

The five common-law elements

Start with the common-law skeleton, then layer the constitutional requirements on top. A plaintiff must establish each of the following:

A false statement of fact about the plaintiff.
That the statement was of and concerning the plaintiff.
Publication to at least one third party.
Fault on the defendant’s part, at a level the Constitution dictates.
Damages, which are presumed for libel and usually must be proved for slander.

Fact, not opinion

Only verifiable assertions can be false. Calling a restaurant “the worst in town” is protected evaluative opinion; saying its kitchen failed a health inspection is a checkable fact. The dangerous middle ground is the opinion that implies undisclosed facts, as in “in my view he is not fit to handle client money.” Courts treat that as actionable because it suggests the speaker knows something specific.

Of and concerning the plaintiff

A reasonable recipient must understand the statement to refer to this plaintiff. The plaintiff need not be named if extrinsic facts identify her, a doctrine called colloquium. Group defamation generally fails: a claim that “most politicians take bribes” points at nobody, while the same claim about a three-member city council may point at each member.

Publication

Publication simply means communication to someone other than the plaintiff. It can be intentional or negligent, and it need not be widespread. Each repetition is a fresh publication, which is why repeating a defamatory rumour exposes the repeater to liability even if she attributes it to someone else.

The constitutional overlay: three tracks

Before 1964 defamation was close to a strict liability tort. Sullivan changed that by holding that a public official suing over official conduct must prove actual malice. Gertz extended constitutional protection to speech about private plaintiffs on matters of public concern. The result is a three-track system.

Plaintiff and subject	Fault the plaintiff must prove	Damages available
Public official or public figure	Actual malice: knowledge of falsity or reckless disregard for truth	Full damages, including punitive
Private plaintiff, matter of public concern	Negligence as to truth	Actual damages only; presumed and punitive require actual malice
Private plaintiff, purely private matter	Common-law rules; states may impose liability without a showing of fault	Presumed damages permitted

Identify the plaintiff and the subject matter before you choose a fault standard.

Actual malice is a term of art and a persistent source of confusion. It has nothing to do with hostility, spite or bad motive. It asks whether the speaker knew the statement was false or subjectively entertained serious doubts about its truth and published anyway. A reckless failure to investigate can supply the inference, but mere carelessness cannot.

Exam tip: write the words “actual malice means knowledge of falsity or reckless disregard for the truth, not ill will” before you apply it. Graders look for that definition because so many answers substitute spite.

Libel and slander: the damages divide

Libel is defamation in a permanent form, classically writing but also broadcast and online publication. Because the harm is durable and the audience wide, general damages are presumed and the plaintiff need not prove any specific financial loss.

Slander is spoken defamation. The plaintiff must ordinarily plead and prove special damages, meaning concrete pecuniary loss such as a lost job or cancelled contract. Hurt feelings are not enough. Four categories escape that requirement as slander per se:

Imputing a serious crime, particularly one involving moral turpitude.
Stating that the plaintiff has a loathsome disease.
Attacking the plaintiff’s competence or integrity in her trade, business or profession.
Imputing serious sexual misconduct.

Defences and privileges

Truth

Substantial truth is a complete defence. Minor inaccuracies do not matter if the gist of the statement is accurate. Where the speech concerns a matter of public concern, falsity is part of the plaintiff’s own burden rather than something the defendant must disprove.

Absolute privileges

Some settings receive protection that no amount of malice can defeat: statements by participants in judicial proceedings, legislative debate, certain executive communications, and communications between spouses. The rationale is that candour in these forums is worth more than the occasional reputational injury.

Qualified privileges

Others are conditional. Fair and accurate reports of official proceedings, employment references, credit reports and communications among people with a shared legitimate interest are privileged only while the speaker acts in good faith and stays within the scope of the interest. Publishing to a wider audience than the privilege justifies, or knowing the statement is false, forfeits the protection.

Common mistakes that cost points

Defining actual malice as spite or ill will instead of knowledge of falsity or reckless disregard.
Applying the Sullivan standard to a private plaintiff who happens to be suing a newspaper.
Forgetting to classify the statement as libel or slander before discussing damages.
Treating any unflattering remark as opinion without asking whether it is verifiable.
Missing that each republication is a separate act of publication.
Skipping the qualified privilege analysis, or treating a qualified privilege as though it were absolute.
Ignoring the requirement that the statement be of and concerning the plaintiff in group cases.
Confusing defamation with the separate privacy torts of false light, intrusion and appropriation.

Frequently asked questions

Can a true statement ever be defamatory?

No. Falsity is an element, so substantial truth defeats the claim entirely. A true but embarrassing disclosure may support a different theory, such as public disclosure of private facts, but it is not defamation.

Who counts as a public figure?

Public officials hold government positions with substantial responsibility. All-purpose public figures have pervasive fame. Limited-purpose public figures have voluntarily entered a particular public controversy and are treated as public figures only as to that controversy.

Are online reviews and social media posts libel or slander?

Because they are recorded and durable, courts almost always treat them as libel, which means general damages can be presumed. The permanence of the medium, not the informality of the language, drives the classification.

Defamation under California law in Los Angeles County, 2026

California codifies what many states leave to the common law, so a Los Angeles County claim is built from statutory text. Section 45 of the California Civil Code defines libel and section 46 defines slander, listing the categories actionable without proof of special damage. Section 47 supplies the privileges, and it is unusually powerful here.

The litigation privilege in section 47(b) is absolute and broadly construed: statements made in or in connection with a judicial proceeding, including pre-litigation communications reasonably related to contemplated litigation, cannot support a defamation claim regardless of malice. Practitioners in the Los Angeles Superior Court encounter this defence more often than any other, and it defeats claims that would survive in states with narrower privileges.

The mechanics that decide California cases:

One year to sue. Section 340 of the California Code of Civil Procedure sets a one-year limitations period, and the single publication rule starts it at first general distribution rather than each download.
Anti-SLAPP comes first. Where the statement concerns a public issue, expect a special motion to strike with fee shifting before any meaningful discovery.
Retraction demands affect damages. Failing to demand a correction from a newspaper or broadcaster within the statutory window limits recovery to special damages.
Online platforms are immune. Federal law shields interactive services from liability for third-party content, and California courts have read that immunity broadly.
Private plaintiffs need only negligence. Actual malice applies to public officials and public figures; a private plaintiff on a private matter faces a lower fault standard.
Employment references have qualified protection. Section 47(c) privileges communications made without malice by an interested party, which covers many workplace statements.

In 2026, work through publication, falsity, fault and privilege in that order, and screen every claim against the litigation privilege before filing. Read with the actual malice standard and the First Amendment framework.

Next steps

Practise by labelling the plaintiff and the subject matter first, because those two facts select the fault standard and the damages rules simultaneously. Then connect the analysis to the broader tort framework in The Four Elements of Negligence: Bar Exam Breakdown and to the causation and defect analysis in Products Liability: The Three Defect Theories Explained. For the free-speech side of the doctrine, review the tiers of review in 3 Levels of Scrutiny in Constitutional Law Explained.

The two governing cases are short enough to read in full: New York Times Co. v. Sullivan, 376 U.S. 254 (1964) and Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). Cornell’s overview of defamation collects the common-law elements, and its note on actual malice is a useful corrective to the spite misconception.