Defamation law is once again center stage in the national headline-grabbing $1.6 billion Dominion Voter Systems v. Fox News defamation case. There, Dominion alleges Fox News published false and defamatory statements of fact about Dominion in news coverage regarding the 2020 U.S. presidential election. Defamation law is often misunderstood and offers an array of potential complications and pitfalls to the unaware.
Defamation v. Slander
Defamation is commonly conflated with slander. Defamation and slander are two terms that are often used interchangeably, but they are not the same thing. Both terms refer to false statements that harm someone’s reputation, but there are some important differences between them.
Defamation is a term that refers to any false statement that harms someone’s reputation, whether it is spoken or written. It can include both libel (written defamation) and slander (spoken defamation). Defamation can occur in many forms, like through social media, news reports, or even casual conversation.
Slander, on the other hand, refers specifically to false spoken statements that harm someone’s reputation. Slander can be a difficult type of defamation to prove because it often occurs in oral, private conversations, making it harder to document.
The main difference between defamation and slander is the mode of communication. Defamation can refer to any false statement that harms someone’s reputation, regardless of whether it is spoken or written, while slander specifically refers to false spoken statements. Both types of defamation can result in legal action, but the burden of proof is often higher in cases of slander, making it more challenging to prove.
It is worth noting that not all negative statements about someone’s reputation are considered defamatory. For a statement to be defamatory or slanderous, it must be false and must also cause harm to the person’s reputation. Additionally, if the statement is true or if it falls under certain categories of protected speech, like opinions or fair comments, it may not be considered defamatory or slanderous.
In Texas, business disparagement is a similar type of tort that occurs when false statements are made about a business or its products or services with the intention of causing harm to the business’s reputation or financial standing. The Dominion v. Fox News case is an example of a business disparagement lawsuit. Business disparagement can take many forms, including false advertising, product disparagement, and negative reviews or comments made with malicious intent.
For a statement to be considered business disparagement, it must meet certain criteria. The defendant must publish disparaging words regarding the business’s economic interests, the words must be false, published with malice, published without privilege, and must result in harm to the business, like lost sales or damage to its brand.
To protect themselves from business disparagement, businesses should be proactive in monitoring their online reputation, responding to negative comments and reviews in a professional manner, and taking appropriate legal action when necessary. Businesses should also ensure their advertising and marketing materials are truthful and accurate and avoid making false statements about competitors or their products or services. In some cases, businesses may be able to pursue legal action against those who have made false statements about them, either through a civil lawsuit or by filing a complaint with an appropriate agency.