Learn to recognize libel and slander, and what you’ll need to win a lawsuit for damages caused by defamation of character.
Talking trash. Throwing shade. Telling lies. When someone makes a false statement about you, can you legally make them pay? It may be possible under your state’s defamation laws.
Defamation of character is a false statement that harms a reputation. There are different kinds of defamation and different rules about who can be sued for making false statements.
Your chances of winning compensation in a defamation of character claim depend on who you are, what was said about you, and how it was said.
Here we unpack the different types of defamation, when free speech crosses the line into defamation, and how you can build a winning claim for compensation.
What Counts as Defamation of Character?
Defamation of character happens when someone “publishes” a false statement about you that causes you harm. “Publishes” means the false statement is shared with someone other than you, either verbally, in writing, or in pictures.
The falsehood must be expressed as a statement of fact, not the person’s opinion. For example, “You look like a crackhead to me” is an opinion. An email sent to your boss stating that you abuse illegal drugs is a statement of fact.
There are generally two types of defamation: slander and libel.
Slander is Spoken Defamation
Slander is a spoken false statement about you. If a false statement is made about you by an individual, or a radio, television, or podcast announcer, the statement may be slanderous.
Example of Slander
Let’s say you applied for a job. When your prospective employer called your references, your previous employer said you were fired 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 verbally made a false statement to your prospective employer. The harm you suffered was not getting a new job.
Libel is Written Defamation
Libel is a written false statement about you and can appear in print, emails, social media, photographs, videos, or another type of visual content. Memes and cartoons depicting harmful false statements may be libelous.
Example of Libel
You applied for a different job. This prospective employer checked your references by email. Your previous employer replied by email and wrote that you were fired because you falsified your time cards.
This is libelous. Your previous employer made a false statement in writing to your prospective employer by email. The harm you suffered was not getting the job.
In the above employment example, you might easily prove you didn’t falsify your time cards by asking other employees for testimony that you were at your job at all the required times, or by obtaining security film footage or other records from your prior job showing you were there.
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 to directly connect the false allegation about the time cards to your not getting the new job.
Important terms used in character defamation law:
- “Defamation Per Se” are statements that are obviously damaging to your reputation. You won’t have to prove you were harmed to win your case. Falsely calling you a thief would be per se defamation.
- “Defamation Per Quod” is the opposite of defamation per se. You’ll have to prove how the false statement caused you financial harm because the harm won’t be obvious to the average person.
- “Actual Malice” is a reckless disregard for the truth. The person knowingly published a false statement. If you’re a politician or other public figure, you may have to prove actual malice to win a defamation case.
Establishing Grounds for a Defamation Case
In most defamation actions, you bear the burden of proof against the person accused of libel or slander.
To establish a character defamation case, you must show:
- The statement was not substantially true
- You can identify who made the false statement
- The person knowingly or recklessly made a false statement
- The statement was published (verbally or in writing) to someone other than you
- The false statement harmed you
Truth as an Absolute Defense
The most 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: Malicious Rumors Proved True
Amy and Connie were juniors at the same high school and rivals for the attention of the same boy.
In a fit of jealousy, Amy spread vicious rumors about Connie. She told several classmates, emailed others, and tweeted that Connie had a sexually transmitted disease (STD). As a result, Connie’s classmates ostracized her, and she was so humiliated and depressed that she required counseling.
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 actively under treatment for 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 was telling the truth. The defamation case was quickly dismissed. As heinous as Amy’s vicious rumor was, and as traumatic as the statements were to Connie, the truth was an absolute defense.
Privileged Statements are Protected
Only “unprivileged” statements can be defamatory.
Statements made during legal proceedings are privileged. Witnesses called in trial can’t be sued for defamation even when they make false and damaging statements against you.
Depending on the state, the same “privileged” protections apply to witnesses in family law cases. Negative testimony against you by a family member or other witnesses in a child custody or divorce hearing usually doesn’t give you a cause of action for a defamation lawsuit.
Lying in court can result in criminal perjury charges against the person, but you still can’t pursue them for defamation of character.
A lawsuit petition or complaint is not necessarily privileged. You may have some recourse if an individual files a frivolous lawsuit against you with baseless claims. While you likely won’t be compensated for defamation of character, you may be able to recover your legal defense fees.
Social Media Complicates Defamation Claims
It’s easy to pinpoint who is making false accusations about you when they have a face and a name. Even on social media, persons posting on their own blog, or using a clear identity or email address can be accurately identified.
All too often, internet users hide behind a false persona to shield their true identity and location. However, it’s not in the public interest to expect internet service providers (ISPs) to police online content.
Recognizing the importance of the internet and internet service providers (ISPs) as a platform for free political discussion, cultural development, and learning, Congress enacted the Communications Decency Act of 1996.
The Communications Decency Act protects internet service providers:
“Civil liability: No provider or user of an interactive computer service shall be held liable on account of—
(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).”47 U.S. Code § 230 (excerpted)
What this means for you is that when you don’t know who posted the comment, you can’t sue the owner of the message board, website, or ISP when someone else uses their platform to damage your reputation.
Based on later case law, you also can’t sue an internet provider for failing to remove defamatory content posted about you.
Case Example: No Liability for Failing to Remove False Statements
Kenneth Zeran filed a lawsuit against American Online, Inc. (AOL) arguing that AOL:
- Unreasonably delayed in removing defamatory messages about him posted by an unidentified third party
- Refused to notify its subscribers that the messages about Zeran were false
- Failed to screen for similar postings afterward to prevent them from appearing
Referencing the Communications Decency Act of 1996, the court acknowledged that Congress chose to limit liability for internet service providers when it comes to false comments posted on their sites in the interest of protecting freedom of speech.
The court decided the same protections are necessary when it comes to removing harmful statements from internet sites.
In the court’s opinion, making internet providers responsible for taking down every potentially defamatory comment from the internet would have an obviously “chilling effect on the freedom of Internet speech.”
Defamation Standards for Public Figures
A landmark decision handed down by the United States Supreme Court during the civil rights struggles of the 1960s protects the First Amendment right to freedom of the press, particularly when it comes to criticism of public officials.
Case Example: Newspaper Cleared of Defamation of Public Official
L.B. Sullivan, who was an elected official in Montgomery, Alabama, filed suit against the New York Times for publishing a full-page ad that contained negative references to police treatment of student protesters, as well as harassment of Dr. Martin Luther King, Jr.
Sullivan argued the libelous statements referred to him because his duties included supervision of the police department.
Some details in the newspaper ad were found to be false, and potentially libelous. However, the court ruled that before the press could be found responsible for defaming the character of a public official, there had to be proof of “actual malice” meaning they knew that a statement was false, or they were reckless in deciding to publish the information without investigating whether it was accurate.
Defamation Per Se and Obvious Harm
One type of defamation doesn’t require you to prove harm. In this type, you don’t have to link the slander or libel to 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:
- A false statement that a person has a disease. Most of these cases involve defaming someone by saying they have a sexually transmittable disease or mental health condition.
- 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, pedophilia, and other similar crimes.
- A false statement about sexual misconduct, meaning the person’s sexual activities are immoral or unethical. In this example a man loses his job due to false accusations.
- A false statement about a person’s business reputation, including stating a person is dishonest in their business dealings, likely to embezzle money, to cheat, or other similar professionally despicable traits.
While the average person will recognize obvious harm in being falsely accused of molesting a child or dealing drugs, many character defamation cases require proof that you suffered actual harm from the false statement made about you.
The less obvious form of defamation is defamation per quod (a Latin term meaning “whereby”). You’ll need to show that because of the false statement, you were harmed by losing a job, eviction from your home, losing customers, and so on.
Defamation Requires a Third Party
To prove defamation and harm, you also must show a third person read, saw, or heard the false statement about you. This means someone other than you must have read, seen, or heard the slanderous or libelous statement.
Example: False Accusation of Drug Dealing
Your neighbor doesn’t like you and 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. In this scenario, the statement was false and libelous.
But let’s say you’re alone in the parking lot when your neighbor appears. She walks up to you and says, “You’re a drug dealer.” No one else overheard the statement.
Because your neighbor told you alone, outside the presence of anyone else, the falsity of her 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, because no one but you saw the email.
Compensation for Character Defamation
Winning compensation in a defamation suit requires proof of libel or slander, documentation of actual damages, and expert presentation of your case to the jury.
Building a strong civil case starts with gathering important evidence:
- Witnesses: 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, forwards it, or otherwise spreads the false statement is a potential defendant in your lawsuit, even if they didn’t make the initial defamatory statement.
- Copies of false written statements: Make copies of emails, social media postings, letters, notes, and any other evidence containing the defamatory statements against you.
- Proof of Damages: Regardless of whether you were damaged by defamation per se or defamation per quod, you and your attorney will need to document the types of damages you suffered in your tort claim for compensation.
If the defamation affected your business, gather income statements from before and after the false statements were made, to show the loss in income. Similarly, if damage to your reputation cost you a job or promotion, prepare calculations of the present and future value of the lost income.
If the defamation of your character shattered your personal life or ruined your standing in your family and community, you need evidence of psychiatric or psychological counseling, examples of people who ostracized you, organizations that rejected you, and a detailed account of your resulting emotional distress.
Compensatory and Punitive Damages
Compensatory damages include your measurable economic losses and an additional amount to account for your emotional distress and loss of enjoyment of life.
In particularly harmful and malicious libel or slander, a judge or jury may award punitive damages to punish the at-fault party and deter others from similar types of defamation.
Case Example: Jury Awards $38 Million in Defamation Lawsuit
It took several years and millions of dollars in investigative and legal costs before Bradley Cohen was able to track down the evidence needed to win his civil defamation lawsuit against former business tenant Ross B. Hanson and Hanson’s associates.
After losing a prior lawsuit to Cohen, Hanson retaliated by publishing elaborate websites using Cohen’s name and falsely accusing him of criminal activities. Cohen and his real estate businesses suffered from the false claims for four years before the case came to trial.
After a seven-day trial, Hanson and his associates were ordered to pay $38 million in compensatory and punitive damages.
Why You Need a Defamation Lawyer
It’s almost impossible to erase the initial feelings of outrage and humiliation caused by attacks against your character, but you can take steps to protect yourself.
It’s rare anyone will admit to making defamatory statements, and even when they do, it’s unlikely they’ll publicly set the record straight or offer you a fair settlement for the harm done to you.
If you want or need more than a lame apology, you’ll need expert legal advice. Don’t wait. The statute of limitations for filing a defamation lawsuit varies by state. Defamation deadlines range from 6 months to three years, depending on your jurisdiction and the type of defamation case.
A civil lawsuit verdict against the party who made the false statement about you can go a long way towards restoring your business and personal reputation.
Defamation attorneys understand the legal issues surrounding libel and slander. Your attorney can take depositions, subpoena documents and computer files, investigate the person who is defaming you, and document the special damages you suffered.
Don’t let a malicious liar have the last word. Most personal injury lawyers offer a free consultation to victims of defamation.
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Defamation of Character Questions
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