A defamatory communication is one that tends to harm a person's reputation by lowering the person in the community's estimation or deterring third persons from dealing associating with the person.
To maintain an action for defamation, a plaintiff (victim) must show a communication with four elements: (1) defamatory imputation; (2) malice; (3) publication; and (4) damages.
A communication is defamatory per se if it imputes: (1) criminal conduct; (2) a loathsome disease; (3) misconduct in a person's trade, profession, office, or occupation, or; (4) sexual misconduct.
What this means is that the statement must contain one of the topics above or else it is not considered defamation per se.
Statements that are defamatory per se do not require the victim to prove damages because said statements are so serious that the damages are presumed.
Statements are only defamatory per se when they constitute a serious charge of incapacity or misconduct in words so obviously and naturally harmful that proof of their injurious character can be dispensed with.
For example, statements by employer which implied theft by employee were defamatory per se because the statements charged the employee with the commission of a crime.
However, remarks such as calling a person "liar" fall short of being defamatory per se and are merely obnoxious remarks with which reference to extrinsic facts is necessary to convey a defamatory meaning.
In addition, the defamatory nature of the communication must appear without resort to extrinsic facts or circumstances.
The determination of whether a communication is defamatory is generally a question of law, however, it can come down to a factual determination in some situations.
Certain defenses can be raised to defeat a defamation claim.
The general defenses include truth or the common interest rule.
The truth is an absolute bar to recovery under a defamation claim.
If a person says another person is a thief and that he stole money, and those statements are true, then no defamation claim can stand.
The common interest rule is usually found to apply in employment situations.
A communication may be protected by a qualified privilege (common interest rule) if a need exists for unrestricted communication regarding matters on which the parties have a common interest.
Under the qualified privilege rule (or common interest rule), a communication is privileged if made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty either public or private, whether legal, moral, or social, if made to a person having a corresponding interest or duty.
So, for example, if an employer holds an employee meeting and announces that an employee was terminated for theft, such communications would likely be protected by the common interest rule because the employer and the employees have a common interest in the well-being of the business and theft by an employee adversely affects that well-being.
However, in making the announcement the employer has to make sure that there is a good faith basis for making the statement, that is, some investigation revealed the employee actually stole from the company.
Also, the announcement needs to be limited in nature and not excessive.
Further, the announcement needs to be made only to members with a common interest, that is employees of the company.
If the announcement is made to independent contractors or vendors who just happen to be at the company when the announcement is made, the employer may have difficulty maintaining the qualified privilege.
In sum, Indiana law recognizes causes of action for defamation and defamation per se.
However, the victim needs to prove certain elements and must also be able to address any affirmative defense raised.