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Friday, May 18, 2012

Defamation and Slander

Everybody has experienced this -- someone has spread rumors or nasty comments about you or your activities to others. When does this conduct rise to the level of defamation?

Defamation is defined (Blacks Law Dictionary) as: "intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name". Generally, defamation is a general heading for for the two specific torts of libel (written defamation) and slander (spoken defamation). For the purposes of this general overview, both the tort of libel and the tort of slander follow the same requirements as general defamation.

To prove a case of defamation, the plaintiff must show:
  • 1. The offending party acted intentionally, and
  • 2. The offending party's statement was publicly uttered (i.e. it was published or spoken), and
  • 3. The offending party's statement was false, and
  • 4. The offending party's statement caused some economic loss

For #4, the amount of lose required to be proven varies on the individual making the claim, and the type of damages sought. Generally, a business suing under a defamation cause of action is not required to prove damages -- it is understood that economic damages result in any untrue statements to could reasonably cause another person to do business elsewhere.

Key aspects of defamation to remember:
  • The statement must be false.
  • Merely because you don't like what the other party said, or you feel it was unfair, does not give rise to a defamation cause of action. The statement made must be false, and it must be more than a mere opinion.
  • The statement must be public.
  • All types of defamation require the offending party to utter their defamatory words to another. Just emailing, calling or writing to you is not enough. It must be documented and it must be to someone else.
  • The action must be intentional.
  • The offending party had to make his/her/their statement knowing it was false and intending to harm the plaintiff. Misquoting or inadvertently slandering another by omission or mistake does not give a cause of action under defamation statutes or common law.

The first step in a defamation case is the "cease and desist" letter -- or a "notice" letter. This letter, drafted by an attorney, puts the offending party on notice that they are either in danger of, or have already committed, some form of defamation. The letter should be specific, and it should indicate the action that gave rise to the complaint. After the offending party receives the "notice", any further defamatory acts on his/her/their part constitutes intentional conduct, per se, as they have been notified of their conduct regarding the plaintiff. It should be noted that, if the offending party, upon receipt of the plaintiff's notice, retracts their statement, or contacts to the plaintiff to explain their action in such a way as to remove "intentional defamation" from their conduct, the ability to show intent, and therefore a valid cause of action under defamation, decreases significantly. The law encourages this. The purposes of defamation lawsuits is to punish those that either intentionally defame others or refuse to stop egregious conduct. When a party is notified they have wronged the plaintiff, and after notification, stops and attempts to correct the malfeasance, a finding under defamation is much harder (although when the offending party's conduct is truly abhorrent, and slanderous or libelous, a finding may still be had...just for less damages).

Can punitive damages be had in a defamation case? Yes. Called an "intentional tort", defamation, and it's children torts, permit suing for punitive damages (called "special damages" in some jurisdictions), when the plaintiff can show direct, economic loss stemming from the defamation, no remedial action on the part of the offending party when put on "notice", or the conduct continued after being put on "notice", and the plaintiff is not in a special category that limits or removes the right to sue for punitive damages (public figures, for example).

If you are not eligible for punitive damages, what relief can you get? In a defamation case, the primary relief is equitable -- it's called an injunction. An injunction is a court order telling a person, group, or organization to "do" something. In this case, the court would order the offending party to stop their conduct, and possibly publish a retraction. Additionally, if the plaintiff suffered economic loss, including attorney fees, the offending party could be made to pay that amount back to the plaintiff (not punitive..strictly reimbursement for documented loses).

When is a false statement more than an opinion? Opinions do not give rise to defamation suits. No matter how insulting or frustrating an opinion may be -- when an offending party states a private opinion, they are protected under the 1st amendment. But how far can a statement go, and still be considered an opinion?

Generally, the court looks at these factors:

  • 1. Is the statement an overt fact? (i.e. Sam broke into my store and stole my shovel.)
  • 2. Would a reasonable person believe the statement to be fact? (i.e. I used the placement agency before, and have years of experience in consulting work. The placement firm is dishonest and mistreats its applicants.)

Remember, because much of defamation law is controlled by common-law (meaning, the scope, reach, and interpretation is created by cases heard and decided in court, not statutes passed by an elected assembly), application of defamation laws vary widely from jurisdiction to jurisdiction and state to state.

Do you need assistance with a cease and desist letter? Have you received a notice from another attorney? A phone discussion is free, and a thorough analysis of your case is only $150 -- and we credit that towards full representation if you opt to go with Hanover Law!

Sean R. Hanover, Esq
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Anonymous said...

I'm not a lawyer, but I suspect that one of the pieces of information in the article is incorrect? "To prove a case of defamation, the plaintiff must show.....the offending party's statement was false"

Surely, the burden of proof would be on the defendant to prove a statement they made is true, rather than the plaintiff to prove it as false.

Sean Hanover said...

Actually -- no. The duty is with the plaintiff who brings the suit. From a purely logical standpoint, this makes sense. Otherwise, anyone who said, "You slandered me!" would need prove nothing more than mere words were spoken -- it would be the burden of the defendant to show that the words were not slanderous. That would create a huge glut of cases and a true burden on both the Court and defendants. It would squelch free speech and have a extremely negative effect on open communications. The Court WANTS open and aggressive dialogue, and expects feelings to get hurt. However, hurt feelings, and slander, are significantly different. It is up to the plaintiff to show how defendant overstepped the bounds of propriety by stating untruths -- and that those untruths caused harm. -- SRH, Esq 703-402-2723

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