The recent settlement of the lawsuit by Melania Trump against The Daily Mail has made headlines. The First Lady sued the publication for libel stemming from an article published in August, 2016. The suit alleged hundreds of millions in damages caused because of allegations about the true nature of Mrs. Trump’s work for a modeling agency. The amount of the settlement, negotiated privately, remains undisclosed, although the Associated Press reported $2.9 million, far less than the $150 million sought.

What is libel?

While most people have heard of libel, slander and defamation, it is less understood what these terms mean. While similar, they are not identical legal terms.

Both libel and slander are categories of defamation. Defamation is a public statement made by a third party that is false, which the party making the statement either knew or should have known. In other words, the party accused of defamation must either have knowingly lied, or been negligent in searching for the truth. Libel is written defamation, while slander is a spoken.

Wait . . . but people lie about celebrities and businesses all the time

As any restaurant owner with a bad Yelp review can tell you, one unhappy customer can mean a scathing online review, one that may include outright lies intended to damage the business for a perceived sleight.

There are many considerations to take into account when filing a lawsuit for slander. The first is a simple cost/benefit analysis. Is a lawsuit worth the trouble? In many cases, the answer is no. In addition, an opinion cannot be defamatory. The written review “the worst restaurant in New York City” is not defamatory, even if its claim is dubious. “There was a rat tail in my spaghetti,” however, can be libelous if untrue.

Public figures aren’t like the rest of us

Tabloid material may or may not amount to libel. Public figures, including the First Lady, have a more strenuous burden when proving a defamation claim. Because they are well-known, public figures tend to have significant information about them shared widely. In order to be successful on a defamation claim, therefore, the public figure must prove “actual malice” by the individual or entity making the statement. In other words, negligent reporting or fact-checking is not enough.

This is in contrast to one business making a false statement about a competitor, for example. If a business makes a claim about a competitor without checking if it is true, it could very well be libelous.

Defenses

There are several defenses to a libel claim. Truth is an absolute defense, of course. In addition, the defendant can allege their statement was opinion, not a statement of fact, or that there was a lack of harm or lack of identity (i.e. their statement was not about anyone in particular or did no damage).

If you are considering pursuing a claim for libel, or need to defend against such an allegation, contact an experienced business litigation attorney to further understand your rights and options.