What Is Defamation?
You defame someone when you make a false statement about the person and the statement harms the person’s reputation. The defamatory statement is libel if written and slander if spoken.
Reducing the Risk of Defamation
To be defamatory, the statement must be false. A truthful statement - even if unflattering - is not defamatory. Therefore, even when making controversial or potentially offensive statements, you can reduce the risk of a libel claim by focusing on the raw facts.
When doing a full pre-publication or libel review (also called vetting) of an article, book or script that is an exposé, I make word and editing suggestions designed to make the piece a more objective reporting of events and, thus, less likely to be libelous.
Here are illustrative examples of word selection changes that reduce libel risk:
DO NOT refer to John as Nick’s accomplice in an activity that did not result in a criminal arrest, charge, or conviction. INSTEAD refer to John as working with Nick on the activity.
DO NOT say John sabotaged the process (if John’s actions are not criminally or civilly actionable). INSTEAD say John opposed the process by {description of John’s actions}.
DO NOT say John misrepresented the process. INSTEAD say John misstated the process or John made an inaccurate statement {followed by a factual explanation of how John’s statement was inaccurate}.
DO NOT say John falsified claims. INSTEAD, say John made claims that did not withstand scrutiny.
DO NOT refer to a blog as a hate blog. INSTEAD, refer to the blog as a blog that is critical of {subject}.
DO NOT say Attorney Smith’s argument to the District Court begins with a list of poorly researched items accusing . . . INSTEAD, say In trying to convince the court, Attorney Smith used a list of items that were inaccurate or used out of context.
DO NOT refer to Mr. Smith’s years of stonewalling INSTEAD, refer to Mr. Smith’s delays in sharing the requested information.