Nevada state law recognizes two forms of defamation:
- libel and
The principal difference is whether the statements are made
- verbally (which is slander) or
- in writing (which is libel).
To prove a defamation cause of action in Nevada, you must establish four elements:
- That the defendant made false statements of “fact” about you;
- That the defendant made an unprivileged publication of the statement(s) to a third party;
- That the defendant acted negligently, recklessly or intentionally; and
- That as a result of the statements, your reputation was damaged.
To help you better understand defamation lawsuits, our Nevada personal injury lawyers discuss the following, below:
- 1. What is the difference between defamation, libel and slander in Nevada law?
- 2. What are the elements of a defamation case?
- 3. What about my right to free speech?
- 4. What are the defenses to defamation in Nevada?
- 5. What is business disparagement?
Under Nevada law, defamation is a catch-all term for false statements that cause damage to someone’s reputation.
If the statement is made verbally, it is slander. If made in writing, it is libel.
Libel is defined under section 200.510 of the Nevada Revised Statutes (NRS). NRS 200.510 (1) provides:
A libel is malicious defamation, expressed by printing, writing, signs, pictures or the like, tending
- to blacken the memory of the dead, or
- to impeach the honesty, integrity, virtue, or reputation, or
- to publish the natural defects of a living person or persons, or community of persons, or association of persons, and thereby to expose them to public hatred, contempt or ridicule.1
In Nevada, libel can be charged as a gross misdemeanor crime. But more commonly it is the subject of a civil suit brought by an injured party.
When charged as a crime, libel must be proved beyond a reasonable doubt. But in a civil case, it need only be proved by a “preponderance of the evidence” – that is, that it is more likely than not that the defendant defamed the plaintiff.
Slander is basically the same as libel, but applies to statements made orally. Otherwise, the elements are the same.
However, as it can be harder to prove that a damaging statement was made verbally (or that a verbal statement caused damages), defamation cases more frequently involve libel.
In Nevada, a plaintiff must prove four elements to establish a defamation claim:
- A false and defamatory statement;
- Unprivileged publication to a third person;
- Fault, amounting to at least negligence; and
- Actual or presumed damages.2
For purposes of Nevada’s law on defamation, a false statement is one that purports to be about a fact. Statements of opinion cannot be defamatory because “there is no such thing as a false idea.”3
A statement of fact is not defamatory if it is true or even mostly true. Nor is it defamatory if it is an exaggeration or generalization that could be interpreted by a reasonable person as “mere rhetorical hyperbole.”4
A false statement is defamatory, however, if it “would tend to lower the subject in the estimation of the community, excite derogatory opinions about the subject, and hold the subject up to contempt.”5
In determining whether a statement is actionable for the purposes of a defamation suit, the court must ask “whether a reasonable person would be likely to understand the remark as an expression of the source’s opinion or as a statement of existing fact.”6 In making this judgment, however, comments must be considered in context.7
Publication has a different definition in the context of libel and slander than the ordinary definition of the word.
You “publish” a defamatory statement when:
- You communicate it to someone other than the person the statement is about, and
- The person you communicate it to doesn’t know it is false.8
Examples of publication include (without limitation):
- Posting a false statement on your Facebook or Instagram page;
- Repeating a rumor to a group of co-workers; or
- Sending a malicious and false email about a girl you know to one of her friends.
Even if you heard the statement from someone else and are just repeating or sharing it, if you know or have reason to believe it is false you can still be liable for defamation.
However, a statement is not defamation if it was privileged, even if it is false. The most common privilege that arises in defamation cases is the so-called “litigation privilege.”9
The litigation privilege applies to communications made in the course of judicial proceedings. While it has typically been applied to lawyers, it also extends to instances where a non-lawyer responds to threatened litigation or in anticipation of legal proceedings.10
A typical example is a blanket denial of wrongdoing by a company representative after receiving a threat of legal action, even if the representative knows that the company did what it was accused of.
As with any personal injury in Nevada, the defendant must have acted with a degree of legal culpability in order for the plaintiff to be entitled to damages. However, the level of culpability required in a Nevada defamation case depends on whether the plaintiff is a public or private figure.
When the plaintiff is a private individual, he or she need only prove that the defendant was negligent in making a false statement.
However, if the plaintiff was a general or limited public figure, he or she must prove that the statement was made with “actual malice.” Actual malice means a statement was made either:
- With the knowledge that the statement was false, or
- With reckless disregard for whether the statement was false or not.11
Reckless disregard for the truth may be found when the “defendant entertained serious doubts as to the truth of the statement, but published it anyway.”12
The test is a subjective one. It depends on “what the defendant believed and intended to convey, and not what a reasonable person would have understood the message to be.”
The jury must find actual malice based on “clear and convincing evidence.” Clear and convincing evidence is a higher standard of proof than proof by a preponderance of the evidence (but less than beyond a reasonable doubt). It is evidence that leaves the jury with a firm belief or conviction that it is highly probable that the plaintiff’s factual contentions are true.13
Nevada law recognizes two categories of public figures. General public figures are people who are so famous or notorious that they are considered public figures in all contexts. Examples of general public figures include:
- Major league athletes;
- Politicians, and
- Prominent business leaders.
Limited public figures are people who have only achieved fame or notoriety based on their role in a particular public issue. They are considered public figures only to the extent the lawsuit is based on that role. The test is whether the person’s role in a matter of public concern is voluntary and prominent.
An example of a limited public figure is Richard Jewell, who discovered a bomb at the Atlanta Summer Olympics. Because Jewell had granted one photoshoot and ten interviews to the press, an Atlanta trial court ruled that he had voluntarily and prominently become a limited public figure for purposes of reporting related to his background and his role in the clearing of Olympic Park.14
A company can also be a public figure. For instance, in Nevada, a business open to the public is considered a public figure for the limited purpose of reporting on the quality or condition of its services.
Because such a business has voluntarily entered the public spectrum by providing public accommodation and seeking public patrons, it cannot sue for customer reviews that express a negative opinion. However, publishing false facts in a review would still form a basis for a libel suit.15
In most defamation cases, the plaintiff needs to prove that he or she actually suffered damages as a result of the defendant’s defamatory statements.
Examples of compensatory damages include (but are not limited to):
- Lost profits,
- Decreased business traffic, or
- Adverse employment consequences.
However, if you have suffered defamation “per se” damages will be assumed even if you can’t prove exactly what they are.
Certain statements are considered so damaging that the plaintiff is entitled to sue without specific proof of damages. These statements constitute what is known as “defamation per se” in Nevada law. Per se is a Latin term meaning “of itself.”
Historically, to constitute defamation per se, a false statement had to fall into one of four categories:
- That the plaintiff had committed a crime;
- That the plaintiff had contracted a loathsome disease;
- That a woman was unchaste; or
- That the allegation would tend to injure the plaintiff in his or her trade, business, profession or office.”16
Typically, modern defamation cases fall into the first or fourth category. They are statements that falsely accuse someone of a crime or accuse someone of a lack of fitness for a particular business, or profession.17
Examples of defamation per se in Nevada include (but are not limited to):
- Falsely accusing someone of sexual assault,
- Lying about seeing cockroaches at a restaurant, or
- Posting on social media that a lawyer didn’t really pass the Nevada bar exam.
However, if the statement is directed toward the quality of a product or services (as opposed to someone’s general fitness for a profession), the claim is one for the related tort of business disparagement, as discussed in Section 5, below.18
If your claim is not for defamation per se, you will need to prove that you were actually damaged by the defendant’s false statements. Ways you can do this might include:
- Income statements for before and after the statements were made;
- Written statements from potential clients that they are taking their business elsewhere; or
- Testimony that you were denied an opportunity because of the allegations.
Your Las Vegas personal injury attorney can help you examine the evidence and find appropriate accounting and forensic experts, if needed.
The First Amendment to the U.S. Constitution provides that the government may not prohibit free speech. However, this right is not absolute. In the context of a defamation suit, the United States Supreme Court has held that there is “no constitutional value in false statements of fact.”19
Additionally, the Nevada Constitution provides:
Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated. [Emphasis added] 20
There are numerous defenses available in a Las Vegas defamation case. Some of the most common include:
- The defendant never said anything negative about the plaintiff;
- The statement was true;
- The statement wasn’t published;
- The statement wasn’t made negligently or with a reckless disregard for the truth;
- The statement was an opinion;
- The statement was obviously exaggerated or a joke;
- The communication was privileged; or
- The statement was false, but it wasn’t defamation per se and it didn’t damage the plaintiff.
An experienced Las Vegas defamation attorney can advise you on which, if any, defenses might apply to your defamation suit.
The Nevada tort of business disparagement is closely related to defamation. To succeed in a claim for business disparagement, the plaintiff must prove:
- A false and disparaging statement;
- The unprivileged publication of that statement by the defendant;
- Malice; and
- Special (actual) damages.
Business disparagement differs from defamation in that the plaintiff must show either:
- That the defendant published a disparaging statement with the intent to cause harm to the plaintiff’s monetary interests, or
- That the defendant published a disparaging remark knowing its falsity or with reckless disregard for its truth.21
Additionally, the plaintiff must prove that the defendant’s disparaging remarks resulted in an actual economic loss to the plaintiff.
Also see our article on the Nevada civil claims of
- Intentional interference with contractual relations and
- intentional interference with prospective economic advantage.
- See also Phillips v. State (2005) 121 Nev. 591, 119 P.3d 711.
- Pope v. Motel 6 (2005) 121 Nev. 307, 114 P.3d 277.
- Pegasus v. Reno Newspapers (2003) 118 Nev. 706 (citing Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789).
- Wellman v. Fox (1992) 108 Nev. 83, 88, 825 P.2d 208, 211.
- K–Mart Corporation v. Washington (1993) 109 Nev. 1180, 866 P.2d 274.
- Nevada Ind. Broadcasting v. Allen (1983) 99 Nev. 404.
- Pegasus, note 3.
- Simpson v. Mars Inc. (1997) 113 Nev. 188, 929 P.2d 966.
- Circus Circus Hotels v. Witherspoon (1983) 99 Nev. 56, 657 P.2d 101; Lubin v. Kunin (2001) 117 Nev. 107, 17 P.3d 422.
- Pegasus, note 3.
- Same, citing New York Times Co. v. Sullivan (1964) 376 U.S. 254 and Curtis Publ’g Co. v. Butts (1967) 388 U.S. 130. See also NRS 41.332: “ ‘Actual malice’ is that state of mind arising from hatred or ill will toward the plaintiff and does not include that state of mind occasioned by a good faith belief in the truth of the publication or broadcast.”
- Posadas v. City of Reno (1993) 109 Nev. 448, 851 P.2d 438.
- United States District Court for the Ninth District, Model Civil Jury Instructions 1.7.
- Atlanta Journal-Constitution v. Jewell (two cases), numbers A01A1564-A01A1566.
- Pegasus, note 3.
- Nevada Ind. Broadcasting, note 6.
- See K–Mart Corporation, note 5.
- Clark County School Dist. v. Virtual Educ. Software, Inc. (2009) 125 Nev. 374, 213 P.3d 496.
- Gertz, note 3.
- Nevada Constitution Art. I Section 9.
- Pegasus, note 3.