Defamation of character is a false statement that harms a reputation. There are generally two types of defamation: slander and libel. Slander is a spoken false statement about you. Libel is a written false statement about you and can appear in print, emails, social sites, photographs, videos, or other type of publication. Sometimes, defamation can include a combination of slander and libel.
Example of Slander
Let’s say you applied for a job. When your prospective employer checked your references, your previous employer said he fired you because you falsified your time cards. You know that statement is untrue. You never falsified your time cards. As a result, you didn’t get the job.
This is slanderous. Your previous employer made a false statement to your prospective employer. The harm you suffered was not getting the new job.
Example of Libel
You applied for a different job. This prospective employer checked your references by email. Your previous employer replied by email and said he fired you because you falsified your time cards.
This is libelous. Your previous employer made a false statement to your prospective employer by emailing him. The harm you suffered was not getting the job.
Cause of Harm
To succeed in a defamation case requires proving not only that the statement was false, but the statement itself was also the direct cause of your harm. This presents a challenge. In the above example, you might prove you didn’t falsify your time cards relatively easily. You could have other employees testify you were at your job at all the required times, or use surveillance camera footage showing you were there waiting on customers.
However, proving you didn’t get the new job because of your previous employer’s false statement may be a lot harder. To prove the required harm, you need proof his false allegation about the time cards directly linked to your not getting the new job.
It’s unlikely your prospective employer will tell you the reason you didn’t get the job was because of what your former employer said about you. That could involve him in a lawsuit, which is the last thing he wants. He could easily say he decided not to hire you because he didn’t like the way you looked or because you said something he didn’t like, or for a number of other perfectly legitimate reasons having nothing to do with the time card issue.
Defamation Per Se
Many defamation of character cases require proof the statement was false and proof of the harm you suffered. Harm from defamation includes losing a job, eviction, losing customers, etc. This form of defamation is defamation per quod (a Latin term meaning “whereby”).
A second type of defamation doesn’t require you to prove harm. In this type, you don’t have to link the slander or libel to a specific harm you suffered. The slanderous or libelous false statement by itself is enough to have a strong case of defamation. This type of defamation is known as defamation per se (meaning “in itself”).
In defamation per se, the false statement alone is so serious that the harm you suffered is obvious to anyone without your having to prove it. While each state has its own definition of defamation per se, there are generally four types, either slanderous or libelous. They are:
- A false statement that a person has a disease. Most of these cases involve defaming someone by saying they have a sexually transmittable disease (STD).
- A false statement that a person has committed a crime of moral turpitude. Crimes of moral turpitude include theft, robbery, assault, drug dealing, forgery, rape, incest, and other similar crimes.
- A false statement that a man or woman is not chaste, meaning the person’s sexual activities are abnormal.
- A false statement about a person’s business reputation. This includes stating a businessperson is dishonest in his or her business dealings, likely to embezzle money, to cheat, or other similar professionally despicable traits.
To prove defamation, you also have to show a third party read, saw, or heard the defamation. This means someone other than you must have read, seen, or heard the slanderous or libelous statement.
Example: False accusation of dealing drugs
Your neighbor doesn’t like you. She wants you evicted from your apartment. To do this, she sent an email to the apartment manager saying you were dealing drugs out of your apartment. The statement was false. Because dealing drugs is considered a crime of moral turpitude, your neighbor committed defamation per se.
In this case, you don’t have to prove she harmed you. Accusing you of a crime of moral turpitude in and of itself means defamation per se. In addition, she sent the libelous email to a third party, your apartment manager.
But let’s say you were out by yourself walking your dog. Your neighbor saw you and approached you. When she did she said, “You’re a drug dealer.” No one else overheard the statement. (Dogs don’t count as third parties.) Because your neighbor told you alone, outside the presence of anyone else, the false statement does not equal slander.
The same is true if your neighbor sent you alone an email accusing you of dealing drugs. Because the neighbor sent the email to only you, the false statement isn’t libelous. Although you may consider the false email statement libelous, it doesn’t qualify legally as libel. That’s because no one else saw the email but you.
In this case, there may be an exception. Let’s say after reading the email, your husband, wife, child, friend, or other third party saw the libelous email. The minute they read the email, it became legally actionable libel. They, or any one of them, constitute a third party for defamation purposes.
Truth as an Absolute Defense
Another very important element in defamation of character cases is the consideration of truth. No matter how hurtful the alleged defamation is to you, your loved ones, or friends, if the statement is true, your claim of defamation fails. You have no case – period.
Example: Spreading malicious rumors
Amy and Connie were juniors at Medville High School. They were jealous of each other over a boy in their class. In an attempt to win the attention of the boy, Amy spread vicious, unfounded rumors about Connie. She told several classmates, emailed others, and posted the rumor on one of the Internet social websites that Connie had a sexually transmitted disease (STD).
As a result, Connie’s classmates ostracized her and she had to seek counseling. (On its face, it appears Connie has a very strong case for defamation per se by slander and libel.)
In a rage, Connie’s parents hired an attorney and filed a defamation of character lawsuit against Amy and her parents, seeking $1.5 million in damages. Unfortunately, Connie’s parents neglected to tell their attorney Connie was on medications to treat an STD she contracted several months before. During pretrial discovery, Amy’s attorney subpoenaed Connie’s medical records and quickly learned about Connie’s STD.
Amy’s attorney immediately filed a motion asking the court to dismiss Connie’s defamation lawsuit. As the basis of the motion, she attached as an exhibit a copy of Connie’s medical records. The court, in turn, dismissed Connie’s lawsuit. As heinous as Amy’s vicious rumor was, and as traumatic as the statements were to Connie, truth was an absolute defense.
Proving Defamation of Character
To succeed in a defamation of character per quod lawsuit requires showing the defamatory statements caused you some form of harm. You must prove this or the judge will dismiss your case. In defamation per se lawsuits, to have a viable case doesn’t necessarily mean you have to prove someone harmed you. Just the statements are enough to keep your case in court.
Once your case gets to court, you have to lead a jury down the path from the defamation itself to the dollar figure that fairly represents the harm that person caused you. A jury may agree you were defamed, but after that, you have to give them evidence they can base a monetary verdict on.
Here are some forms of evidence to prove your case:
Since slander is the spoken word, you need one or more third parties to testify they heard the slanderous remark. For libel, they must have read it. Each person who utters the slanderous remark or forwards it in an email, posts it on social site, or otherwise spreads the false statement is a potential defendant in your lawsuit, even if they didn’t make the initial defamatory statement.
Speak with witnesses who heard or read the false statements. Ask them if they’re willing to give a written statement detailing when they heard or read the defamation, how it shocked them, and who sent it to them.
Copies of false statements
Make copies of emails, social site remarks, letters, notes, and any other evidence containing the defamatory statements against you.
This is one of the most challenging aspects of a defamation case. To give the judge or jury something they can base a verdict on, you must also show evidence the defamatory statement exposed you to hatred, ridicule, contempt, or occupational injury. Then, you have to give the jury some way to calculate your actual losses, or “damages.”
If the defamatory statements were per quod and resulted in your losing a job, you have to calculate the amount of income you lost. If you lost customers because of the statements, you have to produce evidence showing the decline of customers after the statements compared with before the statements. And you have exclude other intervening factors.
If the defamation was per se, you need evidence of psychiatric or psychological counseling, names of people who ostracized you after the statements, and how that affected you.
The Role of Attorneys
Defamation of character cases almost always require representation by an experienced personal injury attorney. You just can’t do it alone. It’s rare anyone will admit to making defamatory statements, and even when they do, it’s unlikely they’ll offer you a settlement you think is fair for the amount of harm done to you. It’s safe to say if someone defames you and you want more than just an apology from the “defamer,” you need an attorney.
An attorney can use pretrial discovery and take depositions (recorded, sworn statements) of the defamer and others who may have spread the slander or libel. An attorney can subpoena records and, when necessary, file a lawsuit. An attorney will also research previous cases to calculate jury verdicts in similar defamation cases. Doing all this can build a strong enough case and force the defamer to settle before trial.
If it becomes necessary, the attorney can file a lawsuit and argue your case before a jury. In some cases, if the defamation is per se, your attorney may want to proceed to trial to convince the jury to award punitive damages. Punitive damages can range into the hundreds of thousands of dollars.
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