Slander. The term Libel, Slander, and defamation are frequently confused with each other. They are all similar in that they all fall into the same general area of law that concerns false statements which harm a person’s reputation. This general area of law is called defamation. Libel and slander are types of defamatory statements. Libel is defamatory statement that is written. Slander is a defamatory statement that is oral.
However, the distinction between libel and slander was significant and had real-world implications regarding how a case was litigated including the elements that had to be proven and who had the burden of proof. Illinois courts have changed their approach, however, as the Illinois Supreme Court explained in Bryson V. News America Publication, Inc:
“At common law, libel and slander were analyzed under a different sets of standards, with libel recognized as the more serious wrong. Illinois law evolved, however, and rejected this bifurcated approach in favor of a single set of rules for slander and libel. Libel and slander are now treated alike and the same rules apply to a defamatory statement regardless of whether the statement is written or oral.”
The tort of defamation (sometimes referred to as defamation of character) can be divided into claims involving two distinct types of statements: defamatory per se statements and defamatory per quod statements. Statements that are defamatory per se (sometimes referred to generically by courts as libel per se) are so obviously and naturally harmful to one’s reputation on their face that proof of injury is not required. Illinois law recognizes five types of statements that are considered defamatory per se:
- Imputing that a person committed a crime; See the case of Farashi V. Yakubu (1970) NWLR 17.
- Saying that a person has an infectious disease. Bloodworth V. Gray (1844) 135 ER 140
- Accusing a woman or girl of unchastity. Kerr V. Kennedy (1942) All ER 412
- Imputing that a person is unable or lacks the integrity to perform one’s employments duties;
- Imputing that a person is infected with a loathsome communicable disease;
- Imputing that a person lack ability or otherwise prejudices one in one’s profession; and
- Imputing that a person has engaged in adultry or fornication.
Importantly, a statement can only be considered defamatory per se if the harmful effect is apparent on the face of the statement itself. If extrinsic facts or additional information about the person being defamed is required to understand the harmful effect of the statement, then it cannot be defamatory per se. That is not to say the statement is not defamatory if extrinsic facts are required; it just cannot be defamatory per se.
If defamatory statement does not fall into one of the defamatory per se categories or requires extrinsic facts, then it is considered defamatory per quod. Unlike in cases involving defamation per se, defamation per quod claims require the plaintiff to allege and prove special damages (also called “special harm” by some courts). The term “special damages” or “special harm” is a legal term of art in defamation law that means the loss of something with actual economic or pecuniary value. In other words, a plaintiff alleging defamation per quod must be able to show specifically how the defamation caused a specific, quantifiable loss of money such as the commission from sale or the salary from a lost job.