The short version
- Four elements: a false statement purporting to be fact, publication to a third person, fault amounting to at least negligence, and damages.
- Truth is a complete defence, and opinion is rarely actionable. The test is whether a statement can be proved true or false, not how damaging it feels.
- Public officials and public figures must prove actual malice — knowledge of falsity or reckless disregard — by clear and convincing evidence. Actual malice does not mean spite.
- Time is short. Most states allow one or two years, running from publication rather than from when you found out.
This is a topic where being precise protects you. Defamation law is one of the few areas where making the accusation carelessly can cost more than the original statement did — because a claim aimed at protected speech can end with a court ordering you to pay the other side's legal fees. So it is worth being exact about what the law actually requires before deciding you have been defamed.
The four elements
A prima facie defamation case in the United States requires: a false statement purporting to be fact; publication or communication of that statement to a third person; fault amounting to at least negligence; and damages. Every one of those is a separate hurdle, and a claim that clears three and fails the fourth is not a partial claim. It is no claim.
- False, and a statement of fact. If it is true, there is no defamation however damaging it is. If it cannot be proved true or false at all, it is opinion.
- Published to a third person. An insult delivered only to you is not defamation. One email to one colleague is enough.
- Fault. At minimum negligence — that the speaker did not take reasonable care. For public figures the bar is far higher.
- Damages. Actual harm to reputation, except in the per se categories where harm is presumed.
Fact or opinion: the line that decides most cases
Expressions of opinion, however offensive, are rarely actionable. The working test is not whether the statement was harsh but whether it is capable of being proved true or false. "Their work was appalling" is a judgement. "They are not licensed" is a fact with a public register behind it.
The complication is that calling something an opinion does not make it one. A statement framed as opinion but implying undisclosed facts — "in my opinion, he is the kind of accountant who moves client money around" — can be treated as an assertion of fact, because it invites the reader to believe the speaker knows something specific.
Where a statement sits, and why it matters
Opinion or judgement
Unflattering but true
False fact, harm to prove
False fact, per se category
Libel, slander and the per se categories
Libel is defamation in written or otherwise fixed form; slander is spoken. The distinction survives mainly because of damages: slander historically required proof of specific financial loss, unless the statement fell into a per se category where harm was presumed.
Those categories traditionally cover allegations of criminal conduct, of having a loathsome disease, of conduct incompatible with a person's business or profession, and of serious sexual misconduct. Accusing someone of a crime or of a corrupt act is the clearest case. The categories and their treatment vary by state, and online publication has blurred the libel–slander line considerably, so it is a framework rather than a rule.
Fault: the element that ends most claims
This is where a case that looks strong on the facts falls apart, and it depends on who the claimant is rather than what was said.
| Who you are | What you must prove | Standard of proof |
|---|---|---|
| Private individual | The speaker was negligent — no reasonable care taken | Preponderance of the evidence |
| Public official or public figure | Actual malice | Clear and convincing evidence |
| Limited-purpose public figure | Actual malice, but only as to their area of prominence | Clear and convincing evidence |
| Any claimant seeking punitive damages | Actual malice | Clear and convincing evidence |
Actual malice does not mean ill will. It comes from New York Times Co. v. Sullivan (1964) and means the statement was made with knowledge that it was false, or with reckless disregard of whether it was false. In St. Amant v. Thompson (1968) the Supreme Court made the second limb concrete: reckless disregard requires that the speaker actually entertained serious doubts about the truth of what they were saying. Failing to investigate, relying on a biased source, or not calling you for comment is generally not enough on its own.
The limited-purpose public figure rule catches people out in both directions. Someone who has thrust themselves to the forefront of a particular controversy is treated as a public figure — but only for statements about that controversy. Defamatory claims about a well-known athlete's career would attract the actual malice standard; claims about their private relationships might not.
On damages, a private claimant can recover compensation for actual injury without proving actual malice. Presumed damages and punitive damages require that higher level of fault. This is why so many defamation claims that are technically viable are not economically worth bringing.
The defences, in the order they get raised
Five defences, and how much of the claim each one ends
- Ends it entirely
Truth
It does not have to be true in every particular — substantial truth is generally enough.
- Ends it entirely
Opinion
Not capable of being proved false, and not implying undisclosed facts the speaker claims to know.
- Ends it, whatever the motive
Absolute privilege
Judicial proceedings and certain legislative and official contexts cannot found a claim at all.
- Ends it, absent actual malice
Qualified privilege
A reference, a report to a regulator, a warning to somebody with a legitimate interest in hearing it.
- Changes the defendant
Section 230
An online service is generally not treated as the publisher of what its users post. The author is the target, not the host.
Work down this list before writing anything. A claim that meets all four elements and runs into any of the first three is still no claim.
Why the letter you send matters more here than anywhere else
Every state that has one gives defendants a fast exit from claims brought over protected expression. Michigan's Uniform Public Expression Protection Act, in force from 24 March 2026, is a clear example of the modern design: a special motion within 60 days of service, all other proceedings including discovery automatically stayed, a hearing within 60 days and a decision within 60 days of that, immediate appeal as of right if it is denied — and, where the moving party prevails, an award of court costs, reasonable attorney fees and litigation expenses that the court shall make.
The sequence that produces that outcome starts with an angry letter. Someone posts a critical review or a complaint to a regulator, the subject sends a demand that it be deleted, the poster refuses, and the subject sues. If the statement was opinion, or true, or covered by privilege, the claim does not survive the special motion and the fee award follows. The general risks of over-reaching in this kind of correspondence are covered in what a cease and desist letter can actually do; in defamation they are at their sharpest, which is why a cease and desist is rarely the right first document where the target is somebody's speech.
If it does meet the test, act quickly and narrowly
Limitation periods here are unusually short. Most states allow one or two years, with outliers in both directions — as little as six months for slander in Tennessee, three years in a handful of states. Under the single publication rule the clock generally starts at publication, not when you discovered the statement, which means an old post you have only just found may already be out of time.
What to do in the first week
- Capture the evidence: full-page screenshots with visible URLs and dates, archived copies, and the names of anyone who saw it.
- Write down exactly which words you say are false, and what the truth is. If you cannot fill in the second column, stop.
- Identify who published it. Under Section 230 the platform is usually not the right target; the author is.
- Check the platform's own reporting route first — it is free, fast, and frequently sufficient.
- Consider a retraction demand rather than a threat of proceedings. Many states have retraction statutes under which a prompt, clear and complete correction reduces or eliminates recoverable damages, which gives the other side a reason to say yes.
- Diarise the limitation date for your state, and take advice well before it.
Retraction demand template
The narrower, more effective document in most of these disputes — the exact statement, why it is false, the correction sought, and where it should appear. Free to read and copy.
A retraction demand is usually the better opening move than a defamation notice threatening litigation. It asks for something specific and achievable, it is much harder to characterise as an attempt to suppress criticism, and it produces the outcome most claimants actually want — the false statement corrected — without funding a lawsuit. If money genuinely has been lost and the elements are met, that is a separate claim and belongs in a separate letter: how to write a demand letter sets out the structure.
The uncomfortable conclusion
Defamation law is deliberately hard on claimants, because the alternative is a system in which anyone with money can silence criticism. That design choice means most people who have been publicly and unfairly treated have no legal remedy at all — the statement was opinion, or was substantially true, or the harm cannot be proved, or the cost of proving it exceeds the recovery. The practical response is almost always a correction sought calmly and quickly, a documented record kept in case it escalates, and a decision not to make the false statement more visible by fighting it in public.
Sources
- Defamation — Cornell LII Wex
- Actual malice — The First Amendment Encyclopedia
- Proving fault: actual malice and negligence — Digital Media Law Project
- Defamation and privacy law in the United States — Carter-Ruck law guide
- Statute of limitations for defamation — Super Lawyers
- Michigan's anti-SLAPP law: an overview for litigators — Benesch
General information, not legal advice. This guide explains how these documents and rules generally work. Law varies by jurisdiction and changes, and none of it is applied to your circumstances here. For anything consequential, consult a licensed attorney where you are.
Frequently asked
Is a bad review defamation?
Almost never. Reviews are largely opinion, and opinion is not actionable however damaging it is. A review becomes potentially defamatory only where it asserts a specific fact that is false and checkable — that a business was shut down by inspectors, that the owner has a conviction, that a licence has lapsed. Even then, the practical remedy is usually a correction rather than a lawsuit.
What is the difference between libel and slander?
Libel is defamation in written or fixed form, slander is spoken. The distinction historically mattered for damages: slander required proof of financial loss unless it fell within a per se category such as an allegation of crime or of conduct incompatible with the claimant's profession. Online publication has blurred the line, and many states now treat the two similarly.
Do I have to prove the statement was made maliciously?
Only if you are a public official or public figure, or you are seeking punitive damages. Then you must prove actual malice — knowledge of falsity or reckless disregard of the truth — by clear and convincing evidence. A private individual claiming compensation for actual injury generally needs to show only negligence, which is a substantially lower bar.
Can I sue the website that hosted the statement?
Usually not in the United States. Section 230 means an online service is generally not treated as the publisher of content its users post, so the person who wrote the statement is the realistic defendant. Platforms do operate their own reporting processes, and those are free and often quicker than anything a court can offer.
How long do I have to bring a defamation claim?
Less time than you expect. Most states allow one or two years, and the single publication rule generally starts the clock at the date of publication rather than when you found the statement. Because the periods are short and vary widely, establish your state's deadline early — a strong claim discovered too late is worth nothing.