The following is excerpted from Tentative Draft No. 1* of Restatement of the Law Third, Torts: Defamation and Privacy.
In the half century since the Second Restatement, the rapid development of digital communications has rendered the libel–slander distinction untenable, both theoretically and practically. It now serves no purpose except to make defamation more technical, confused, and expensive. For the reasons stated in § 1, the Tentative Draft unifies libel and slander into a single tort of defamation, thereby liberating courts and litigants from such arcane and muddled doctrines as libel per se, libel per quod, slander per se, and slander per quod. The simplified tort of defamation will serve as a fit and useful instrument for the redress of communications that harm reputation.
Chapter 1. Invasions of Interest in Reputation.
Topic 1. Elements of a Cause of Action for Defamation
§ 1. Elements of Defamation
Comment g. Libel and slander. The elements set forth in this Section are applicable to all communications that contain defamatory factual statements, whether spoken or written, or in whatever other form they may take. In advancing a single set of elements for a unified tort of defamation, this Restatement departs from Restatement Second of Torts § 558(d), which, with reluctance, applied different damages rules to written defamatory communications than to spoken ones. See Restatement Second, Torts § 568, Comment b (“For two centuries and a half the common law has treated the tort of defamation in two different ways on a basis of mere form. Yet no respectable authority has ever attempted to justify the distinction on principle; and in modern times, with the discovery of new methods of communication, many courts have condemned the distinction as harsh and unjust.”). Given the rapid and significant changes to communications technology in recent decades, such a distinction can no longer be justified. This Section therefore drops requirements for proof of special harm (i.e., out-of-pocket losses) that have traditionally distinguished slander from libel.
Historically, the term “libel” has been applied to defamation in written or in some other relatively permanent form; the term “slander” has been used to refer to defamation that is spoken or otherwise “impermanent.” Over the centuries, the distinction between slander and libel has been doctrinally significant. A plaintiff suing for slander, but not for libel, had to prove special damages in addition to the other elements of defamation, unless the allegedly defamatory communication fell within one of four distinct categories, in which case the communication was known as slander per se. Slander per se consisted of oral communications alleging that a plaintiff was engaged in serious criminal activity; that a plaintiff lacked traits required in the plaintiff’s business, trade, or profession; that a plaintiff suffered from a “loathsome” disease; or that a plaintiff, if a woman, was unchaste. Courts later expanded the fourth category to include allegations of sexual misconduct about men. Plaintiffs suing for libel, in contrast to slander, typically were not required to allege or prove special damages; damages were presumed from the defendant’s publication of a defamatory communication. The common-law distinction between libel and slander solidified in King v. Lake (1670) Hardres 470, 145 Eng. Rep. 552, 553, in which Hale, C.B., set out libel as a separate tort because words “being writ and published . . . contain[ ] more malice, than if they had but been once spoken.” A plaintiff suing for libel did not have to allege or prove damages because publishing defamatory statements in written or fixed form was said to involve greater fault than publishing defamatory statements in spoken form. Courts sometimes also justified the distinction between libel and slander by asserting that written defamation causes more substantial and permanent harm than oral defamation.
Since the 17th century, courts have followed precedent and distinguished slander from libel, but they have done so reluctantly and have scathingly criticized the distinction. Late-20th- century and early-21st-century developments in communications technologies have rendered those criticisms acute. The internet and social media make it virtually impossible to give intelligible meaning to a doctrine based on the premise that harms caused by defamatory communications systematically depend upon whether communications are oral or written. Even before the internet or social media existed, a slanderous word in the ear of the wrong person could easily cause greater harm than a defamatory pamphlet distributed to strangers. Slanders could be made to crowds, libels distributed to a single recipient. Digital technologies have not merely undermined but have demolished whatever foundation may once have supported distinguishing between written and spoken defamation. The internet has made a medium of mass communication freely available to billions of persons, and any harms that result from defamatory communication in that medium do not correlate to their written or spoken form.
Nor does the fault of speakers correlate systematically with the form their speech takes. Critics have long acknowledged that slanders can be deliberate and written libels inadvertent, and that observation has even more force now that speakers can reach mass audiences almost instantaneously with spoken or written content. Insofar as the distinction between libel and slander is meant to protect the spontaneity of oral conversation from strict liability, the distinction fails to account for the often spontaneous nature of written internet communications. Moreover, because the common law of defamation has evolved to require that plaintiffs prove fault whether a defendant’s communication is oral or written, the spontaneity of oral conversation is adequately protected: speakers will not be subject to liability based on utterances whose meanings or falsity could not reasonably have been foreseen.
Considering these developments, courts and litigants should no longer be forced into a procrustean struggle to squeeze new expressive forms into categories developed centuries ago.
* This text will be presented to ALI membership at the 2026 Annual Meeting in Tentative Draft No. 1, and is not yet approved. After discussion at the Meeting, membership may vote to approve the material presented subject to the discussion and the usual editorial prerogative. Tentative Drafts may be approved in whole or in part, and may also require edits beyond general editorial changes that require the draft to be presented to the Council and membership again.