You don't have to be Kristen Bell to get a kick out of gossip. The grapevine has a grip on us all. It serves as an important tool in human societies everywhere for social bonding and the enforcement of norms. Research suggests that gossip is prevalent across genders and plays complex roles, many of them positive, in social dynamics and relationships.
Of course, gossip can lead to negative consequences. Ruined reputations and burned bridges are one thing, but is there more at risk than just your social life? And with social media's growing usage in recent times, there's now more than ever more potential opportunities for gossip — and consequently, more potential for legal threats based on what you post on social media.
Let's take a look at when something that might be considered gossip might be a step too far. Legally, you'd be concerned largely with not crossing from gossip into what's known as "defamation."
Defamation: Slander and Libel
Defamation is the act of communicating false statements about a person that injure the reputation of that person. On the other hand, gossip may or may not be true, and may or may not be harmful. The essential harm in defamation is that it can lead to the discrediting of an individual in the eyes of others, potentially causing personal, professional, or financial damage.
Legally, defamation is divided into two forms: slander and libel. Slander refers specifically to spoken defamatory statements, while libel refers to written or published defamatory statements.
Slander is a form of defamation that involves making false, damaging statements about someone verbally. Slander concerns spoken words, but also stretches further to gestures or other transitory forms of communication.
Libel, on the other hand, is a type of defamation that involves making false and damaging statements about someone in a fixed medium, such as written words or images. This can include publications in newspapers, books, online articles, social media posts, and pictures.
Elements of Defamation
Both libel and slander share core elements in common that make them defamatory.
Firstly, for a statement to be considered slanderous or libelous, it must be presented as a fact. Something that's presented as an opinion—no matter how offensive that opinion is— cannot legally be considered defamation. If you Tweet "my neighbor is a bad driver" it's not libelous, since its your opinion. "My neighbor ran over my dog," on the other hand, is libelous if it isn't true (you can't defame by telling the truth).
Secondly, the false statement must be made to someone other than the person being defamed. it needn't spread far or be announced to a wide public, but it does need to reach at least one other person besides the person you're talking about. In theory, this could just be a statement about Larry you told Sharon at the office water cooler — even if she kept it to herself. It could also be something you wrote about Sharon in an email to Larry that he never forwarded.
However, the statement must have caused harm to the reputation of the person. This usually means that the statement has lowered the person's esteem in the eyes of the community or deterred others from associating with them.
Intent Requirements
What if the gossipmonger didn't mean to hurt anyone? Intent is not always required for a statement to be defamatory. The standard varies depending on the jurisdiction and whether the plaintiff is a private individual or a public figure. For private individuals, most jurisdictions require a showing of negligence — that the person making the statement failed to exercise reasonable care in ascertaining the truth of the statement.
In cases involving public figures, there is a higher standard, which usually requires proof of "actual malice." For public figures, the standard for proving defamation is higher than for private individuals. Public figures must prove "actual malice" in a defamation case. This means they must show that the statement was made with knowledge of its falsity or with reckless disregard for whether it was true or false. The rationale behind this higher standard is to protect freedom of speech and the press, especially in matters of public concern, where open and robust debate is considered essential to democracy.
The practical reality is that slander lawsuits are usually only filed against defendants who have money. As FindLaw Writ columnist Julie Hilden points out: "Slander litigation - rather than having a focal document, like the article that is the centerpiece of a libel case - [can] quickly become a free-for-all of [contradiction]. In the end, the only thing that really prevents slander suits from overrunning the legal system, is the shallow pockets of most of the defendants whom hurt and angry plaintiffs would otherwise sue for slander."
So what's the meaningful difference between gossip and defamation? Well, there's a lot of potential overlap. Gossip can sometimes lead to defamation if the information shared is false, damaging, and meets the criteria for defamation under the law. Another way to think about it is simply that gossip is not a legal concept, whereas defamation is. If you're not careful, your casual act of gossiping can be considered grounds for the legally-defined act of defamation.
Gossip is also important in other legal ways. One big way that gossip comes into play in court is as evidence, often referred to as "hearsay." Can you use someone's gossip as hearsay evidence in a trial to prove something happened? Read more on FindLaw's Learn About the Law pages.
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