What is Defamation? "Defamation" is the term that has essentially subsumed the older terms of libel, which concerns written or printed defamatory statements, and slander, which concerns spoken defamatory statements. Although the law may sometimes still use the older terms, there is really no substantive difference between the two: both amount to defamation. Defamatory statements can be written, oral, broadcast, or pictorialized.
A plaintiff who sues for defamation must generally prove three things: (1) that a defamatory statement was made or communicated; (2) that the defamatory statement was published, and (3) that the defamatory statement caused the plaintiff to suffer damages.
Oregon courts have set forth the following definition of a defamatory statement:
A defamatory communication is one which would subject a person to hatred, contempt or ridicule, or tend to diminish the esteem, respect, goodwill or confidence in which one is held or to excite adverse, derogatory, or unpleasant feelings or opinions against one.
Newton v. Family Federal Savings and Loan
Association, 48 Or App 373, 376, 616 P2d 1213 (1980). A person who is not directly named in the defamatory statement may still bring suit if he or she can prove that persons hearing the remarks would understand them to refer to the plaintiff.
Several types of statements are considered defamatory per se; in other words, the mere utterance of the statement is sufficient to defame someone. Historic examples of statements that are defamatory per se include statements that impute an inability or unfitness to perform the duties of one's employment, accusations that one has committed a crime, or assertions of unchastity in a woman, or of having a "loathsome disease." When a statement is defamatory per se, the plaintiff is not required to prove that he or she was damaged by the publication of the statement.
At the other end of the spectrum are statements that are not defamatory as a matter of law. Opinions — defined as statements that cannot reasonably be interpreted as stating actual facts — are protected by the United States and Oregon constitutions
and are therefore not defamatory. Nevertheless, when an "opinion" implies the existence of undisclosed defamatory facts, it is actionable as a defamatory statement. Statements that are not defamatory per se nor capable of a defamatory meaning are considered reasonably capable of a defamatory meaning and are almost always resolved by the jury.
The second element a plaintiff must prove is that the defamatory statement was "published." Publication means merely that the statement was disseminated or reproduced to another person. In the case of a broadcaster, newspaper, or other publisher, the publication will be obvious.
Finally, the plaintiff must show that he or she suffered damages as a result of the publication of the defamatory statement. Although this chapter will discuss in greater detail the types of damages for which a media defendant might be liable, it is worth reiterating here that statements which are considered defamatory per se are presumed to cause damage to a person's reputation.