The first question that most lawyers must ask before taking a defamation case is one of fee: "Will the person who has contacted me pay me an hourly rate for my time, or will I be able to recover money from the party who committed the defamation?" This question is important because most individuals who commit defamation do not have the resources (the money) to pay a large damage claim on their own, so if they are not independently wealthy, and they did not act on the behalf of a business or corporation, then the attorney will have to charge a fee to the person who has been defamed. Filing a lawsuit takes substantial time and effort so the retainer fee for an individual who wants to pursue a claim would typically be thousands of dollars. This is why defamation lawsuits are fairly rare. You first have to either have the means (and motivation) to pay for the suit yourself, or you have to have a defendant who has substantial means to pay a judgement.
Defamation of character is part of personal injury law because it causes damage to an individual’s character or reputation. Defamation is classified as either libel, which is written defamation or slander, which is spoken defamation. Defamation is not considered a criminal wrong, but rather a tort or a civil wrong. Defamation can take a multitude of forms in modern society. Defamation can be found in local newspaper letters to the editor, public comments on websites, blog posts, comment sections on the internet, and even social media pages.
To understand how to pursue a claim of defamation, it is a prerequisite that a plaintiff can identify what a defamatory statement is. A statement of defamation is a statement that holds the plaintiff up to scorn, hatred, ridicule, disgrace, or contempt in the minds of a respectable segment of the community. There are certain statements made that will automatically be considered defamation. If an individual says that a plaintiff has committed a serious crime, has an infectious disease, or is incompetent at their job, these statements are automatically considered defamatory. This does not mean that every time a plaintiff has their feelings hurt, they can pursue a claim of defamation. A statement of defamation is a false statement of fact, not an opinion. Opinions are not considered to be defamatory in nature. Additionally, for statements to be considered defamatory, they must be said to a third party. A plaintiff cannot be the victim of defamation if a defamed statement is said or written only to themselves.
Even while defamation has a precise definition, it can be a tremendously complex kind of tort. The harm that is alleged in defamation cases is that there was harm to a plaintiff’s character or reputation because of false statements. Reputation being intangible makes defamation convoluted. The right that all American citizens have to free speech also adds to the complexity of defamation. When a plaintiff sustains severe damage to their reputation that results from defamatory statements, an individual’s well-being can suffer severe harm. The laws of defamation attempt to balance freedom of speech while also protecting individuals from false statements.
As discussed above, defamation is either classified as libel or slander. There are numerous ways in which a person can have their reputation damaged, so it is easiest to consider libel as any written defamation, or spoken or video defamation to a broad audience. Slander, on the other hand, is spoken defamation to a small audience. The judge in a defamation case typically determines the classification of the accusations.
If a judge determines a statement to libel, the plaintiff needs to prove two essential elements. The plaintiff will need to prove that the defendant published the statements made about them in written or another form such as internet comments. The plaintiff will also have to prove that additional people were exposed to the statement. For instance, a written text between two parties is different from a social media post seen by any number of followers. Libel has no additional requirements of proof because the law presumes that once the publication of defamatory statements is written, the statement will remain in the public for a period of time substantial enough to cause damage.
If a judge finds that a statement is to be slander, it will further be classified as slander or slander per se. In the first classification of slander, the plaintiff must prove that the defamatory statement was made to at least one other person and that the statement caused the plaintiff to suffer as a direct result of that statement. The suffering that a plaintiff must prove took place in this type of slander is referred to as special damages. Special damages include actual harm such as the loss of a job or some other type of financial hardship resulting from the defamatory statements. In slander per se, the plaintiff is not required to prove there were special damages. The reason that the plaintiff does not have to prove that special damages took place is because when slander per se statements are made, they are presumed to cause damage. As previously stated, these comments include claiming that a plaintiff has committed a crime, has an infectious disease or statements are made about the incompetence of a plaintiff in their profession.
Once defamation is classified and successfully proven, the plaintiff has the opportunity to collect damages. A plaintiff might be entitled to receive special damages if the defamatory statements resulted in lost earnings, effected future earning possibilities, or caused the business to lose other economic opportunities. If the plaintiff requires mental health treatment because of the defamation, the plaintiff would be entitled to recover any medical expenses that were incurred directly from the defamation. The plaintiff could also be potentially eligible to recover noneconomic damages. The noneconomic damages that occur because of defamation could include mental pain and suffering, anger, loss of appetite, sexual dysfunction, and even mood swings. Defamation damages in noneconomic variety can also include severe damage to the reputation of a victim, personal humiliation, and shame suffered because of the false statements.
There are a few arguments that a defendant may present that could defeat a defamation claim. The truth could be the best defense for someone charged with defamation. For defamation to be present, there must be false statements made. If a defendant can prove that their statement was accurate, then the statements were not defamatory. The defendant may be able to prove the statement was merely an opinion. However, adding qualifiers does not guarantee that a statement will be considered opinion. A jury will be asked to consider all the circumstances surrounding the statements made to determine whether or not qualifiers made the statement an opinion. Particular types of communications are classified as absolutely privileged. Judicial proceedings, statements made by high government officials, statements made during debates, statements made during political speeches and communication in between spouse are absolutely privileged. If an individual makes defamatory statements during one of these circumstances, they would be immune from a defamation lawsuit. A defendant may also have qualified privilege. Qualified privilege permits certain persons in positions of authority such as government officials to make statements that otherwise would be considered defamation. If the defendant can prove none of these defenses, then the plaintiff will most likely be able to collect damages for the defamation of their character.
If you or a loved one wants to pursue a defamation case please contact us. You will speak directly with a personal injury lawyer who can best answer your questions. There is no fee for the initial consultation.