Defamation is an act of communication that causes someone to be shamed, ridiculed, held in contempt, lowered in the estimation of the community, or to lose employment status or earnings or otherwise suffer a damaged reputation. Such defamation is couched in 'defamatory language'. Libel and slander are subcategories of defamation. Defamation is primarily covered under state law, but is subject to First Amendment guarantees of free speech. The scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion.
Under New Jersey law, defamation is defined as “(1) a defamatory statement of fact; (2) concerning the plaintiff; (3) which was false; (4) which was communicated to a person or persons other than the plaintiff; (5) with actual knowledge that the statement was false or with reckless disregard of the statement's truth or falsity or with negligence in failing to ascertain the truth or falsity; and (6) which caused damage.” Huertas v. United States Dep't of Educ., 2009 U.S. Dist. LEXIS 89903, 17-20 (D.N.J. Sept. 28, 2009)
Libel is published material meeting three conditions:
- the material is defamatory either on its face or indirectly;
- the defamatory statement is about someone who is identifiable to one or more persons; and,
- the material must be distributed to someone other than the offended party; i.e. published, as distinguished from slander.
Under New Mexico law, to establish a claim of defamation by a former employer, the former employee must prove each of the following:
- The employer communicated the statement to someone other than the employee;
- The communication contained an assertion of fact;
- The communication was about the employee;
- The statement of fact was false;
- The communication was defamatory;
- The persons receiving the communication understood it to be defamatory;
- The defendant knew that the communication was false, negligently failed to recognize that it was false, or acted with malice;
- The communication proximately caused actual injury to the employee's reputation; and
- The employer abused its privilege to publish the communication.