Estate Planning and Business Law

SLANDER

Definition of Slander

Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means that (1) charges any person with crime, or with having been indicted, convicted, or punished for crime; (2) imputes in him or her the present existence of an infectious, contagious, or loathsome disease; (3) tends directly to injure him or her in respect to his or her office, profession, trade or business, either by imputing to him or her general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his or her office, profession, trade, or business that has a natural tendency to lessen its profits; (4) imputes to him or her impotence or a want of chastity; or (5) that, by natural consequence, causes actual damage [Civ. Code § 46].

Slander Per Se

If words can be shown to have carried a meaning that made them slanderous within any of the first four categories of Civ. Code § 46, damages are presumed, and there is no need to plead and prove special damages to sustain a cause of action.

Damages in Actions for Slander

The Civil Code defines general damages in a defamation action only in case of publication of a libel in a newspaper, or of a slander by radio broadcast, when plaintiff has demanded a retraction and the defendant has failed to publish or broadcast the retraction [see Civ. Code § 48a(1)–(3), (4)(a)]. Other than this specific situation, general damages for defamation are not defined in the Code.

However, under common law principles, in a case of slander per se, damage to the plaintiff’s reputation is conclusively presumed; he or she need not introduce any evidence of actual damages in order to obtain or sustain an award of damages and evidence tending to show lack of injury to reputation is inadmissible. Hence, general damages are presumed as a matter of law in a case of slander per se.

If the slanderous language was not slanderous per se and the action must be brought under Civ. Code § 46(5), after plaintiff proves actual damages as required by Civ. Code § 46(5), the jury then may consider plaintiff’s loss of reputation, shame, and hurt feelings in awarding general damages. However, in suits brought by private plaintiffs within the coverage of the First Amendment, in the absence of proof of “actual malice,” general damages may not be presumed and are limited to “actual injury.”

A plaintiff is never entitled as a matter of right to punitive damages. For punitive damages to be recovered, there must be proof of the presence of malice in fact; that is, the motive and willingness to vex, harass, annoy, or injure. Punitive damages are awarded to punish the defendant for his or her own wrongdoing and not for the wrongful action of someone else, not even his or her own agent or employee.

Blackwell, Santaella & Jahangiri, LLP specializes in business and corporate law, business, commercial and real estate litigation, estate planning and bankruptcy law. We are located in San Ramon, Contra Costa County. We are open from 8:30 a.m. to 5 p.m., Monday to Friday. To make an appointment please call 925-359-3233.

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