Everything You Need to Know to Bring & Succeed in a Defamation Lawsuit Featured Image

Everything You Need to Know to Bring & Succeed in a Defamation Lawsuit

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    A defamation lawsuit is a type of civil lawsuit in which the victim sues a defendant for defamation, a false statement made to a third party that causes damage to another person or business’s reputation.

    To successfully bring and succeed in a defamation lawsuit, a plaintiff must:

    • Determine that they have a valid defamation claim;
    • Identify the best court to file the defamation lawsuit;
    • Gather and preserve their evidence;
    • Comply with all pre-suit filing requirements;
    • Consider alternative dispute or pre-suit resolution tactics; and
    • Draft, file, and serve the legal complaint on the defaming party.

    At Minc Law, we have proven experience filing hundreds of successful defamation lawsuits in 26 states and 5 countries. We have authored more than 22 defamation law state guides, as well as The Complete Guide to Online Defamation—which means that we are extremely familiar with defamation suit requirements in most of the United States.

    This comprehensive guide will address each step in the process and examine the nuts and bolts of bringing a defamation of character lawsuit. We also examine potential procedural hurdles and defenses you may need to overcome. Finally, we discuss the potential costs of a defamation lawsuit and how to find the best attorney to handle your matter.

    How to Prove Defamation

    When filing a defamation lawsuit, it is important to understand the difference between different forms of defamation. If a plaintiff asserts an incorrect legal claim, the case may be thrown out—and the case will not be allowed to proceed.

    It is also imperative to understand the basic elements of proving a defamation claim once it has been brought. We tackle both subjects below.

    What Are the Types of Defamation?

    Defamation is a false statement made to a third party that causes damage to an individual’s or business’s reputation. Defamation can take various forms and occur in different contexts—and as a result, there are several kinds of defamation recognized by most states.

    The two most common forms of defamation are libel and slander. Libel is defamation in written form, while slander is defamation in spoken form.

    Minc Law Legal Terminology Tip: The difference between libel and slander is that one is written, and the other is spoken. A helpful way to remember the two is to keep in mind that slander and spoken both begin with the letter “S.”

    Defamation is also commonly referred to as:

    A tort simply means a wrongful act or omission that causes a personal injury and gives rise to a civil claim for liability.

    Defamation that occurs online is called internet defamation, or online defamation. This type of defamation frequently takes place on social media, online review platforms, and other user-generated content platforms.

    Similar to individuals, businesses that are defamed also have an array of legal claims and remedies available under U.S. defamation laws, such as:

    You can read up further about these business defamation claims under the section ‘What is Defamation?’ in our Complete Guide to Online Defamation.

    Defamation Per Se

    Another classification of defamation is defamation per se (also known as libel per se or slander per se, depending on whether the statement was written or spoken). This term refers to certain defamatory statements that are so damaging that the victim is automatically assumed to have suffered harm as a result of the statement.

    Most U.S. states recognize statements as defamatory per se if they:

    • Accuse the plaintiff of committing a punishable crime or a crime of moral turpitude,
    • Allege that the plaintiff has a loathsome disease,
    • Claim that the plaintiff has engaged in sexual misconduct, or
    • State that the plaintiff has acted improperly or unethically in his or her job.

    Even though harm is “presumed” in defamation per se cases, that does not mean the plaintiff is not responsible for proving that suffering occurred. To receive damages, the plaintiff must still provide evidence of harm.

    Defamation Per Quod

    Some statements are not inherently defamatory on their face but instead become defamatory because of extrinsic facts that are known or appear outside the context and writing at issue. These types of statements are considered defamation per quod.

    In these situations, the victim must provide extrinsic evidence to show how the statement qualifies as defamation. In other words, defamatory per quod cases require a statement to be put into context with external information before it can be considered defamatory and harmful.

    An example of a statement that could be considered defamatory is if someone was accused of sitting at a bar and having a drink. On its face, this accusation, even if false, is not defamatory. However, if that person happens to be an alcoholic and has built a reputation over the last ten years obtaining from alcohol, the false claim that they were drinking could qualify as defamation.

    In most states, defamation per quod cases require a plaintiff to prove two things:

    • That a statement was false and damaging, and
    • The amount or severity of the special damages they suffered (such as monetary loss, emotional suffering, or reputational damage).

    It is also the plaintiff’s responsibility to prove that the damages they suffered were a direct result of the defendant’s statements or conduct.

    Criminal Defamation

    Generally speaking, defamation refers to a civil tort, enabling the plaintiff to obtain a civil remedy – often monetary damages or equitable relief. Some state statutes make it a crime to publish specific types of defamatory statements—but in reality, these criminal defamation laws are rarely enforced.

    In the U.S., there are currently only 13 states that have criminal defamation laws on their books: Idaho, Louisiana, Michigan, Minnesota, New Mexico, North Carolina, Oklahoma, Utah, Virginia, Wisconsin, Montana, New Hampshire, and North Dakota.

    Over the years, many states’ criminal defamation and libel laws have been challenged or overturned for lack of specificity and for infringing on free speech. The U.S. has a history of placing a strong value on the First Amendment and protecting citizens’ rights to free speech, which can make proving defamation difficult.

    For a list of links to each state’s criminal libel statutes and more details on the definition of libel in each case, see our article, “Is Libel a Crime? A Guide to U.S. Criminal Defamation & Libel Laws.”

    Defamation is a defense-friendly claim with dozens of defamation defenses that defendants can use to avoid facing legal consequences. However, there are still three key situations in which defamers can land jail time:

    • When they have violated a restraining order;
    • When they have violated a court order related to libelous behavior and are held in contempt of court; and
    • When they are charged with related crimes, such as extortion, harassment, or stalking.

    Workplace Defamation

    Defamatory statements that are published about a person by their employer or coworkers are classified as workplace defamation. This type of defamation can have severe negative consequences for the victim’s career and professional reputation.

    Situations like rumors, performance reviews, and references can sometimes give rise to a workplace defamation claim.

    While most rumors will not rise to the level of defamation, in cases where the rumor is especially harmful or there is actual malice, there could be a defamation claim. For instance, say John works in a school, where a coworker has a grudge against him. One day, this coworker starts a rumor that John uses illicit drugs and stole money from the county when he served as the school treasurer. Based on this rumor, John is fired.

    Assuming the rumor is false, John could have a claim for workplace defamation.

    Most states have special laws in place that protect employers from defamation claims when giving performance reviews or references. But if an employer heavily exaggerates, lies, or acts in bad faith, an employee might have a workplace defamation claim.

    For example, Sally is fired from her job because of a negative performance review by her boss stating that she was constantly late to work. But Sally was only late once the entire year, and that was only by five minutes. Sally’s boss purposely exaggerated her tardiness because he wanted her fired. Sally might have a potential case for workplace defamation.

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    Elements to Prove in Your Defamation Lawsuit

    The legal elements that constitute a claim for defamation vary by state. Generally, a plaintiff must prove the following four (sometimes five) elements to succeed in a libel or slander claim:

    • There is a false statement of fact that was made about the plaintiff;
    • It was communicated to a third party;
    • It was made or communicated with at least a negligent level of intent;
    • The statement was unprivileged (a requirement in some states); and
    • It caused damage to the plaintiff’s reputation.

    1. False Statement of Fact

    The first requirement for an actionable defamation claim is that the statement made about you or your business was false.

    A false statement is defined as one that is objectively untrue. Truth is an absolute defense to defamation, meaning that by definition, a true statement cannot be defamation. But what constitutes a true or a false statement?

    A few important considerations in determining a statement’s truth or falsity include:

    • Substantive truth. A statement can contain a few inaccuracies and still be considered truthful. If the substance of the statement is true, the statement can be considered a true one for the purposes of a defamation claim.
    • Opinion: In legal precedent, “Under the First Amendment, there is no such thing as a false idea.” Gertz v. Robert Welch, Inc., (1974) 418 U.S. 323, 339. Therefore, an opinion can only be defamatory if the recipient can reasonably infer that the opinion is based in fact.
    • Over-generalization: If a statement alleges a specific crime or behavior that a plaintiff committed, the statement is true and there is no basis for a defamation claim. However, if the defendant made a general allegation implying that the behavior was repetitive (when it only occurred once), this statement becomes untruthful.
    • The speaker’s belief. The defamer may believe their statement is true, but that belief is not enough to protect them from a charge of defamation. However, an honest mistake may be taken into consideration when determining fault relating to recklessness, negligence, or disregard for the truth by the author.
    • Implication. In many states, defamation can be proven by implication. However, it is difficult to prove that defamatory ideas were implied in a statement. In New York, for example, the plaintiff must show that the language of the entire statement must be “reasonably read” to communicate both a defamatory inference and that the author intended to make that reference.

    2. Of and Concerning the Plaintiff

    Next, there must be a connection between the plaintiff and the defamatory statement. Even if the statement does not explicitly identify the plaintiff by name (which can be an individual or business), it can still be considered “of and concerning the plaintiff” if a reasonable person would understand that statement to be about the plaintiff.

    The “of and concerning” defamation requirement usually means that a group of people cannot sue for defamation. But if the statement is made in such a way that one or more individuals in that group can be identified, then the group might have a group defamation claim.

    One of the biggest determining factors for a group libel or slander claim is the size of the group. Usually, groups consisting of 25 individuals or fewer can bring a group defamation claim.

    Additionally, only statements addressing living individuals will meet the “of and concerning” requirement. A party usually cannot bring a defamation claim on behalf of a deceased individual, as you cannot “slander the dead.”

    3. Communicated to a Third Party: The “Publication Requirement”

    To be considered defamation, the statement must have been “published,” communicated to, or read by a third party. As long as the defamatory statement is conveyed to someone other than the defamer or the defamed—either through private or public communication—the publication requirement has been met.

    Keep in mind, however, that a false statement only heard or read by the plaintiff and the defendant do not qualify as defamation.

    In most cases, each instance of publication will constitute its own defamation cause of action—which is why it is important not to share or republish defamatory content online. If you do, you may be as liable as the original defamer. Each time a new person publishes or communicates the original defamatory statement, this constitutes a republication. Restat. 2d Torts § 578 cmt. B.

    The major caveat to the republication rule is called the single publication rule. If a single publication (such as a newspaper article or blog post) is received and read by multiple third parties at once, it is only considered published once for the purposes of the statute of limitations. This rule also places a limit on the plaintiff’s ability to bring multiple lawsuits for a single defamatory publication.

    4. Fault Amounting to at Least Negligence

    To succeed in a defamation of character lawsuit, the plaintiff must show that the defendant acted with a certain level of intent when making the defamatory statements. More precisely, the defamation can only exist if the defendant was:

    • Negligent concerning the truth or falsity of the statement, or
    • Acted with actual malice with regards to the truth or falsity of the statement.

    A publisher acts with “actual malice” when they publish a statement with knowledge of (or a reckless disregard for) its inaccuracy.

    There are unique fault standards for handling the two contexts in which defamation can occur: the public and private arenas.

    • The private arena involves a private citizen (or personal or private matters concerning a public figure). In the private arena, the plaintiff must prove that the defendant showed negligence.
    • Cases in the public arena involve plaintiffs who are public figures (such as a public official who is in the public spotlight or who is likely to elicit public scrutiny) or regard matters of public concern. In these cases, the courts will require a higher standard to be proven: actual malice or reckless disregard for the truth.

    Courts apply this higher standard with public figures for multiple reasons. First, a public figure has a greater ability to defend themselves from defamatory statements. Consider all the attention that a politician can garner by calling a press conference or sending a tweet. A private person will rarely have this sort of audience readily available.

    U.S. society and its founding institutions have a long-held belief that the general public should be free to discuss matters of public concern. This belief relates especially to situations when the statements are critical of the public figure.

    5. The Statement Was Not Privileged

    Most states will recognize some type of legal privilege concerning communications that might otherwise be considered defamation. These privileges might include:

    • Absolute privilege,
    • Qualified privilege,
    • Fair report privilege,
    • Neutral report privilege,
    • Statutory privilege.

    By far, the most common types of privilege recognized among states are absolute privilege and qualified privilege.

    When absolute privilege applies, the speaker has full immunity from defamation liability. Absolute privilege will even protect someone who acts with actual malice when making an otherwise defamatory statement. States differ on when absolute privilege applies, but such immunity is frequently found in:

    • Judicial proceedings,
    • Executive actions,
    • Official (quasi-judicial) proceedings.

    Qualified privilege grants a speaker immunity from defamation claims in certain situations, such as when the audience is limited in size or when there is a public interest in allowing someone to speak freely, even at the risk that information may not be completely accurate or truthful.

    In most cases, qualified privilege will only apply when the statement is made in good faith. An employer serving as a reference for an employee might be a situation involving qualified privilege. Another example might be a witness giving a statement to the police when reporting a possible crime.

    6. Causing Damage to the Plaintiff’s Reputation

    The plaintiff in a defamation case must show that the harm to his or her reputation has resulted in damages. “Damages” is an umbrella term for any form of compensation awarded to a plaintiff in a civil case.

    Recall that defamation damages are presumed in defamation per se cases. But in defamation per quod cases, they must often be specifically identified and quantified in the plaintiff’s legal complaint.

    The specific types of damages available will depend on the type of defamation alleged and the state law that applies. But in most cases, there are three main categories of defamation damages that are potentially available for recovery:

    • Compensatory,
    • Punitive, and
    • Nominal damages.
    Compensatory Damages (Also Called Actual Damages)

    Compensatory damages reimburse a plaintiff for the harm they suffered. Compensatory damages are often broken down into two subtypes: special and general damages.

    • Special damages reimburse the plaintiff for actual losses. The plaintiff must provide documents or other objective evidence to show actual losses, such as a reduction in income, foregone bonuses, lost clients, or added expenses. Sometimes, documents alone will not be enough and an expert witness must testify to explain how the defamatory statement results in special damages.
    • General damages reimburse the plaintiff for harm to reputation or for the emotional distress they experience. Establishing this type of damage is not easy. Courts recognize the difficulty in putting a dollar amount on the emotional pain or damaged reputation a plaintiff experiences because of defamation. Given these challenges, the plaintiff or an expert witness will try to establish these damages by testifying in court.
    Punitive Damages

    Punitive damages are reserved for defamation that was especially malicious, egregious, or wanton. The purpose of punitive damages is to punish the defendant for conduct that the court strongly wants to discourage.

    The plaintiff must prove that the defendant acted intentionally or with reckless disregard (actual malice). The plaintiff must prove actual malice even when suing a private person for defamation.

    Nominal Damages

    Nominal damages are typically awarded when the plaintiff is clearly the victim of defamation but is unable to prove the amount of damages or quantify the harm they suffered. Nominal damages are often awarded when the defamation involves a violation of free speech rights.

    Often, nominal damages are awarded in a small (nominal) amount—sometimes even as low as $1. Although the real benefit is minimal, nominal damages are awarded to give plaintiffs the legal recognition that their rights were violated. Also, being awarded some amount of damages might also help them pursue other legal remedies.

    How to File a Defamation Lawsuit

    Because defamation law is state-specific, the exact process for filing a lawsuit depends on where the plaintiff decides to bring the defamation case. However, in most states its best practice for potential plaintiffs to follow these general guidelines and steps:

    • Determine that you have a valid defamation claim;
    • Ascertain where to file your lawsuit;
    • Gather and preserve evidence;
    • Comply with all pre-suit defamation requirements;
    • Consider alternative dispute resolution options;
    • Draft and file your legal complaint; and
    • Serve the complaint.

    Learning how to file a defamation lawsuit now can potentially save headaches and hassles down the line if you do not comply with necessary rules, guidelines, and other procedural formalities.

    1. Determine That You Have a Valid Defamation Claim

    As stated earlier, making sure you have a plausible claim for defamation is the single most important step when bringing a civil suit for defamation. This determination consists of two parts.

    First, make sure the elements necessary for bringing a libel or slander claim can be met. In short, the defendant must have communicated an unprivileged, false statement of fact about you to a third party with at least a negligent level of intent—and the statement must have caused damage to your reputation.

    For more details on each of these elements, see the section above on “Elements For Proving Defamation.”

    Assuming your situation meets these qualifications, you should next consider any practical consequences, defenses, or legal actions the defendant could potentially invoke in response to your lawsuit. The following defenses and issues may interfere with your decision to bring a lawsuit against the defendant and affect the strength of your claim:

    The Statute of Limitations

    After a defamatory statement is published or communicated, there is a limited window of time in which you can bring a defamation lawsuit. This is known as the statute of limitations. If you miss this deadline, there is a strong possibility that the court will throw out your case.

    When it comes to filing a defamation of character lawsuit, the general rule is that the statute of limitations will begin on the date the defendant first publishes, communicates, or makes the libelous or slanderous statement(s).

    Most U.S. states require plaintiffs to file their defamation suit within one year of when the defamatory statement was published or made.

    There is however an exception to this general rule, known as the ‘discovery rule’ which begins the statute of limitations only after the subject of the defamation discovers it. You can read up further on the statute of limitations and discovery rule in our post ‘What is the Statute of Limitations For My Defamation Claim?’ or check out our video on the matter below.

    Video: What is the Statute of Limitations for Defamation in the U.S.?

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    Section 230 of the Communications Decency Act

    To help promote the growth of the internet, Section 230 of the Communications Decency Act (CDA) provides immunity to internet service providers (ISPs) when third parties use their services to engage in illegal behavior. If you are thinking about suing an ISP like Google, Section 230 of the CDA will likely bar your claim.

    For an easy-to-understand explanation of Section 230 and why it should matter to you, check out our video below:

    Video: Why Section 230 of the CDA Should Matter to You

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    Watch

    Anti-SLAPP Motions

    Some states have Anti-SLAPP statutes that aim to protect individuals or groups from legal intimidation as retaliation for something they said. SLAPP stands for Strategic Lawsuits Against Public Participation and consists of lawsuits intended to censor, intimidate, or otherwise silence others.

    If you initiate a defamation suit in a state that has an Anti-SLAPP law and you lose your case, you may have to pay the defendant’s legal fees.

    The Streisand Effect

    The Streisand Effect is a social phenomenon that occurs when attempts to hide something only bring more attention to it. By filing a defamation complaint against a publisher, there is a risk that it could bring more unwanted attention to the defamatory statement even if you win your lawsuit.

    Sometimes, even if you have a strong defamation case, the risks outweigh the potential benefits. Filing a defamation lawsuit is not a decision that you should take lightly.

    You can read up further on the potential defenses to defamation that you may face in our comprehensive article ‘The Most Common Defenses to Defamation’.

    2. Determine Where to File Your Lawsuit

    This step may seem easy—after all, lawsuits are simply filed with the court, right?

    Unfortunately, this decision is often more complicated than it appears at first glance. Which court is the correct one for your case? And at what level should you bring your suit: state or federal?

    You should consider whether the court you want to use will have proper jurisdiction over the parties involved. For instance, if you live in Florida and the defendant (who lives in Ohio) published an article in Ohio defaming you, you probably cannot file a lawsuit in New York or California.

    Deciding where to file your lawsuit will depend on several factors, such as:

    • Where you live or operate;
    • Where the defendant lives or operates;
    • Where your customers live (if applicable);
    • Where you experienced damages due to the defamation; and
    • How much money you seek to recover.

    Sometimes, there is only one possible place to file your lawsuit. In other cases, you may be able to choose from among several courts in multiple jurisdictions. This situation is sometimes optimal for the plaintiff, since choosing a particular court can provide you with certain benefits.

    For example, state courts tend to be more plaintiff-friendly than federal courts. And certain states may have laws that make it more advantageous to sue for defamation in their state. One state might have a longer statute of limitations, or it may not have any Anti-SLAPP laws.

    There is also the convenience factor to consider, as a local courthouse is usually more preferable to one several states away.

    A plaintiff can generally file suit in the state where the defendant is located and count on having proper jurisdiction. However, in some situations, the defendant is anonymous. If you do not know who they are, you probably do not know where they are located.

    In this predicament, you will likely want to find the court that is most convenient for you. Alternatively, you can look for a court in a state where you were harmed. As a last resort, you can make your best estimate of where the defendant is located and bring the suit there.

    3. Preserve Your Evidence

    The internet makes it easier to be a victim of defamatory statements—but it also makes it easier to gather evidence of defamation. Much of this work can be done for free with built-in features or apps in your operating system or web browser. For instance, you can:

    • Take screenshots;
    • Print out documents;
    • Save entire web pages (if you use Google Chrome, simply click CTRL+S on Windows or CMD+S on Mac to save a timestamped HTML version of the website to your hard drive);
    • Back up emails to another email account.

    If you are facing a serious defamation issue, you may also want to consider using paid tools such as Page Vault and Visualping.

    In some cases, you may not have access to certain information or evidence. It may be stored on someone else’s server or computer hardware. If this is the case and you are worried that they might delete the data, your attorney can help you send out perseveration notices.

    Whatever actions you take to preserve evidence, act quickly. Waiting too long not only risks losing evidence that might help you win your case, but it can delay the start of your defamation lawsuit.

    4. Comply With All Pre-Suit Filing Requirements

    Some states have specific pre-suit requirements that you will need to comply with before filing your complaint in court.

    For example, Michigan and Florida, require a plaintiff to give notice to the person or organization responsible for the defamatory material before proceeding with a lawsuit. And Texas defamation laws stipulate that plaintiffs must first make a retraction demand before suing a publication for libel. The goal of these laws is to give the defamer a chance to remedy the situation before the lawsuit begins in earnest.

    By skipping these steps, you risk your case being thrown out or having limitations placed on the damages you can potentially recover.

    5. Consider Alternative Dispute or Pre-Suit Resolution Tactics

    Litigation is expensive and carries with it a level of unpredictability that can never be fully removed. Even what appears to be a slam dunk case can still lose at trial.

    Thankfully, filing a defamation lawsuit is not necessarily your only recourse for removing defamatory content from the internet. So before deciding to sue, you should always consider alternatives to litigation. We provide five possible alternatives below.

    Negotiating With a Website or Newspaper

    Depending on the basis for your defamation claim and who is responsible, simply contacting the entity that published the defamatory content may be enough to convince them to remove it. Often, suing a newspaper for defamation is not the best course of action for targets of libel. Your attorney can send an editorial request to remove a news article from the internet, a news website, or a newspaper.

    You may also be able to bypass litigation by flagging or reporting the defamatory content if it violates a court order or the website’s terms of service.

    Sending a DMCA Takedown Notice

    The Digital Millennium Copyright Act (DMCA) protects creative works from unlawful online distribution—and it includes special provisions that allow copyright owners to enforce their copyrights without resorting to filing lawsuits.

    If the defamatory statement consists of something to which you own the copyright (such as a photo), your attorney can send a DMCA takedown notice to the defamer or the website asking them to take down the copyrighted material.

    You can read up further about sending a DMCA takedown notice by checking out our comprehensive post by paralegal Darcy Buxton ‘How to Send a DMCA Takedown Notice’.

    Sending a Cease and Desist Letter

    Sending a defamation cease and desist letter can put a defamer on notice that they need to stop their illegal behavior or else face legal consequences. Receiving such notification is often enough to convince a defamer to remove the offending material.

    This strategy is one of the most straightforward options because cease and desist letters in many instances do not require much time or money. Yet, they can sometimes produce the results you desire—especially if they do not request any monetary payouts. However, do keep in mind that there is still significant expertise and effort required to draft a comprehensive and effective cease and desist letter and form letters and templates are rarely effective or convincing.

    Minc Law Cease and Desist Letter Tip: Depending on who you decide to send a cease and desist letter to, understand that the recipient may view it as a bluff and assume you are not prepared to take any further legal action. Before sending a cease and desist letter, have an idea of what you will do if the recipient ignores the letter.

    Alternative Dispute Resolution

    Alternative Dispute Resolution (ADR) is a general term for dispute resolution techniques, including mediation and arbitration. These techniques can often take the place of litigation.

    Many courts will require some type of ADR before allowing a trial to begin. In many cases, a settlement conference takes place in which a neutral third party tries to convince each side to come to a settlement agreement.

    Minc Law Litigation Settlement Fact: Cases can settle at any time, even without a court-mandated settlement conference. Some cases will settle the day a complaint is filed. Others may settle after trial when the case is on appeal.

    Online Reputation Management or Strategic Marketing

    Online reputation management (ORM) takes advantage of online marketing, public relations, customer service, and search engine algorithms to diminish the presence of unwanted content online. The goal of ORM is to improve how individuals and businesses are viewed online via techniques such as:

    • Review management,
    • Content suppression services,
    • Directory and Wikipedia creation and management,
    • Online reputation monitoring,
    • Public relations services,
    • Website creation and design, and
    • SEO and content marketing.

    Online reputation management services and strategies are not perfect, as they do not usually remove the unwanted content—which means a determined individual can still find it online. The benefits of online reputation management could also be temporary, requiring an ongoing effort to suppress the negative information.

    For further reading on ORM, make sure to check out our posts ‘How Much Does Online Reputation Management Cost?’ and ‘Removing Content: Online Reputation Management vs. Legal Services’.

    6. Draft Your Complaint & File Your Defamation Lawsuit

    After taking all of the above actions, you can begin preparing the legal complaint (the civil version of a charge or pleading) that will initiate the litigation process.

    The purpose of the complaint is not just to start litigation, but to explain to the defendant why you are suing them. Most complaints, regardless of jurisdiction, will contain six major components, outlined below:

    • The parties to the lawsuit,
    • Jurisdiction and venue,
    • Factual allegations,
    • Claims for relief,
    • Relief requested,
    • Type of trial requested.

    The Parties to the Defamation Lawsuit

    To succeed in a claim for damages, you need to properly identify those responsible for, and the victim(s) of, the defamation. Take these considerations into account when naming the parties in your complaint:

    • Who was harmed by the slanderous or libelous communication?
    • Will you sue as an individual, an organization, or both?
    • In addition to the defamer, is anyone else responsible for the defamation, such as websites or co-conspirators?

    In situations where you do not know the identity of the defamer (ex. An anonymous poster), you might need to list them as a John (or Jane) Doe – this is commonly referred to as a John Doe lawsuit. Then, as the litigation progresses and you discover the defamer’s identity, you can amend your complaint to bring them into the lawsuit.

    Jurisdiction & Venue

    Jurisdiction refers to a court’s legal power to hear a case and make legal decisions concerning parties in the lawsuit. The venue is the physical location where a case is heard:

    • In state cases, venue usually refers to the county that will hear the case.
    • In federal cases, venue refers to the federal district that will hear the case.

    In a complaint, you must state why you believe your chosen court is the proper venue to bring suit and explain why that court has jurisdiction over the case and the parties.

    Factual Allegations

    The bulk of the defamation complaint will often consist of a numbered list of sentences that state the facts in support of your defamation claim. Each state has its own rules outlining the level of detail you must provide in your complaint.

    In some states, providing enough information to give a general idea of the defamatory statement is enough. In others, such as California and New York, you may need to provide a copy or quote of the exact statement or communication you claim is defamatory.

    Because the complaint is almost always available to the general public, the best practice is to provide only enough information to satisfy the applicable law’s pleading requirements. This strategy helps reduce the risk of the Streisand Effect and keeps a minimal amount of information available to the public.

    Of course, if you want as much publicity as possible, including more information, might be best.

    Minc Law Litigation Tip: Another reason to include as much detail as possible in a complaint is to potentially speed up and streamline the litigation process. By pleading a particular fact in a complaint, the defendant is forced to admit the fact, deny the fact, or explain why they cannot fully admit or deny the fact. These responses to your complaint are binding on the defendant and can be very useful later in your case

    Claims For Relief

    In this portion of the complaint, you will list the legal claims that allow you to seek the recovery you request. It might be tempting to list as many potential legal claims as possible, but in a defamation case, that is typically not the best strategy.

    Adding more claims for relief rarely increases your chances of success or obtaining a higher damage amount. Most defense attorneys and judges understand that some legal claims overlap in the relief defamation can provide. While there can be exceptions, in the vast majority of situations, extra claims for relief only create more work for you and your attorney.

    Relief Requested

    In defamation civil cases, there are two primary forms of legal relief available: monetary damages and equitable relief.

    When asking for monetary relief (or damages in the form of money), It is usually best to request the minimum amount required by law. An exact amount can be determined at trial. Asking for too much money in a complaint can bring unwanted attention to your case.

    One exception to this rule is if you are suing for defamation per quod. Most states will require you to include the exact dollar amount in damages you believe you are entitled to under the law and come up with some level of detail of how you came up with that number. This requirement sometimes applies depending on state court-specific rules.

    Even when you do not need to provide a precise dollar amount for damages in your complaint, you will still need to identify the type of damages you are requesting, such as special, general, or punitive damages.

    In your complaint, it may also be a good idea to explain what losses the damages are remedying. Common reasons could include:

    • Emotional distress,
    • Loss of reputation,
    • Loss of profits,
    • Loss of clients,
    • Out-of-pocket expenses.

    If you are asking for equitable relief (often referred to as injunctive relief), you must also ask for that in your complaint. Equitable relief is a non-monetary judgment that helps repair the injury. In defamation cases, common examples include having the defamatory content removed from a website, and issuing a court order stopping the defendant from publishing the libelous material in the future.

    Type of Trial Requested: Jury or Bench

    In your complaint, you must also request the type of trial you would prefer. You can request a trial by jury, or you can have a judge decide your case (otherwise known as a bench trial).

    It is most often advisable to request a jury trial because if you do, you can always change your mind later. If you do not request a jury trial in your complaint, it is far more difficult to change your mind and ask for a jury trial at a later time.

    Also, do not forget that the defendant has a right to a jury trial. So even if you do not want a jury trial, there is still a chance that you will have one at the defendant’s request.

    It can be difficult to decide whether to request a jury trial or not. Your decision may depend on:

    • Your likeability or the likeability of the defendant;
    • The complexity of the legal arguments you or the defendant plan on making; and
    • How scandalous, inflammatory, or emotional the facts of your case are.

    A very rough rule of thumb is that the more the facts help your case, the more advantageous it is to have a jury. This rule holds especially true when there are details about the defamation that are likely to draw sympathy from a jury.

    For instance, Plaintiff A is a major corporation claiming to be defamed by a single individual who accidentally defamed the company. In that case, Plaintiff A would probably be most successful with a bench trial.

    But in another case, the defendant thought it would be funny to make up a lie about Plaintiff B, an individual, as a practical joke. As a result, Plaintiff B was estranged from their spouse and children, as well as fired from their job. This plaintiff would probably benefit from a jury deciding the case.

    7. Serve the Complaint on the Defendant

    The U.S. Constitution requires due process any time the government deprives a person of life, property, or legal rights. In the case of a defamation lawsuit, the plaintiff may be asking the court to take away the defendant’s money or constitutional right to free speech.

    Due to the severity of this request, the defendant must receive proper notice of your lawsuit. This due process provides the defendant with an opportunity to respond to the plaintiff’s allegations.

    So after you file your complaint with the court, you must provide a copy of your complaint to the defendant through service of process.

    Each court has its own requirements around service of process. But in most cases, the plaintiff must send a copy of the complaint to the defendant (or their representative) within 20-30 days after filing their complaint with the court.

    To serve a copy of the complaint on the defendant, it is common to have a local sheriff’s deputy hand a copy of the complaint to the defendant at work or home. Alternatively, another individual over the age of 18 (who is not involved in the defamation lawsuit) may be able to serve the complaint on the defendant.

    Still have questions about filing an internet defamation of character lawsuit? Make sure to read our comprehensive article by paralegal Dayra Lomba ‘5 Frequently Asked Questions About Internet Defamation Lawsuits’.

    Minc Law Service of Process Tip: Sometimes it is difficult to find and serve the defendant with a copy of your complaint. If you need an extension to complete service of process, a court will usually give you more time, as long as you show that you are taking reasonable steps to find and serve the defendant.

    How Long Does a Defamation Lawsuit Take?

    Filing a defamation lawsuit is rarely a “quick fix” for your issue. The length of time it takes to resolve a defamation lawsuit can vary is and impacted by a variety of major factors, including:

    • Whether you are seeking monetary relief,
    • If the case is contested by the opposing party,
    • If a defamer’s identity is unknown or known, and
    • If the case proceeds all the way to trial.

    At Minc Law, we find that roughly 90% of our defamation lawsuits take anywhere from 6 to 12 months from filing to full resolution.

    Before hiring a defamation attorney to file a defamation lawsuit, we recommend that you ask yourself if you are willing to be patient.

    How Hard is It to Win a Defamation Lawsuit?

    Winning a defamation lawsuit depends on two things. First, what is your definition of success and winning? For most of our clients (90%), “winning” their defamation lawsuit means:

    • Successfully removing defamatory content from the internet,
    • Obtaining some monetary compensation,
    • Successfully identifying an anonymous defamer and source of the false accusations,
    • Obtaining a court order, or settlement and agreement, that prevents the conduct from continuing and damaging the individual or business in the future.

    If this is your goal, while challenging, success rates are very high and often range north of 90%.

    Second, if your primary objective is to obtain substantial financial compensation, success is much harder. You will need a large budget, (often) need to push the case to trial to obtain a worthwhile settlement, need to overcome all defamation defenses relied on by the defendant, and need to prove defamation damages.

    Obtaining a significant monetary award and compensation can also depend in large on how hard the defendant fights your case and how difficult they make things.

    Finding the Defamation Requirements in Your State

    Despite the similarities among states concerning the tort of defamation, some states have unique differences, especially when it comes to practical aspects of filing a defamation suit. Therefore, it is extremely important to check your state’s applicable laws.

    Most of these differences are procedural, but there are some substantive peculiarities too. If you do not adhere to these state-specific requirements, you risk:

    • Having your case thrown out or dismissed. If you are lucky, you will have an opportunity to refile your case. If you are not lucky, your case will be dismissed permanently.
    • Being prevented from bringing suit. For example, this scenario may occur if you miss the statute of limitations deadline.
    • Having to refile your lawsuit in a different court or state. A court cannot hear your case unless it has jurisdiction. If you file suit in the wrong state, be prepared to start the lawsuit all over again somewhere else.
    • Reducing your potential recovery. Without full awareness of the legal claims you can bring, the requirements for bringing them, and the potential legal defenses the defamer could raise, you risk preparing an incomplete complaint which you may not be allowed to modify at a later time.
    • Losing important evidence because of a litigation delay. You may gather a great deal of potential evidence during the discovery. But in the vast majority of cases, discovery cannot begin until you have completed the pleadings stage of litigation. Needing to refile your complaint delays the start of the discovery process. This delay could result in lost evidence.

    The following chart lists the elements necessary to file a civil suit for the tort of defamation in each state in the U.S.:

    StateElements Needed to Prove Defamation
    Alabama“One who publishes a false and defamatory communication concerning a private person, or concerning a public official or public figure in relation to a purely private matter not affecting his conduct, fitness or role in his public capacity, is subject to liability, if, but only if, he

    (a) knows that the statement is false and that it defames the other,

    (b) acts in reckless disregard of these matters, or

    (c) acts negligently in failing to ascertain them.”

    Mead Corp. v. Hicks, 448 So. 2d 308 (Ala. 1983).

    Alaska“To prevail on a defamation claim, a plaintiff has to establish

    (1) a false and defamatory statement;

    (2) an unprivileged publication to a third party;

    (3) fault amounting at least to negligence on the part of the publisher; and

    (4) the existence of either “per se” actionability or special harm.”

    French v. Jadon, Inc., 911 P.2d 20, 32 (Alaska 1996)

    Arizona
    • A false statement concerning the plaintiff;
    • The statement was defamatory;
    • The statement was published to a third party;
    • The requisite fault on the part of the defendant, and
    • The plaintiff suffered damage as a result of the statement.

    Morris v. Warner, 160 Ariz. 55, 62 (Ariz. Ct. App. 1988).

    Arkansas“[T]he following elements must be proven to support a claim of defamation, whether it be by the spoken word (slander) or the written word (libel):

    (1) the defamatory nature of the statement of fact;

    (2) that statement’s identification of or reference to the plaintiff;

    (3) publication of the statement by the defendant;

    (4) the defendant’s fault in the publication;

    (5) the statement’s falsity; and

    (6) damages.”

    Dodson v. Allstate Ins. Co., 47 S.W.3d 866, 875 (Ark. 2001).

    California
    • There was a false statement of fact that was published without privilege to a third-party;
    • The statement amounted to at least negligence on the part of the defendant; and
    • The statement was either (a) defamatory per se or (b) caused special damage to the plaintiff (defamatory per quod).

    Cal. Civ. Code §§ 44, et seq.

    Colorado“A statement is libelous per se if

    (1) the defamatory meaning is apparent from the face of the publication without the aid of extrinsic proof; and

    (2) the statement is specifically directed at a particular person…After the Court finds that a statement is libelous per se, plaintiffs must prove that (1) the statement was published; (2) the statement caused actual damages; (3) the statement was false; and (4) the defendant acted with reckless disregard as to falsity.”

    Muhaisen v. Doe, No. 17-cv-01575-PAB-KLM, 2017 U.S. Dist. LEXIS 167542 (D. Colo. Oct. 10, 2017).

    Connecticut“[t]o establish a prima facie case for defamation, the plaintiff must demonstrate that:

    (1) the defendant published a defamatory statement;

    (2) the defamatory statement identified the plaintiff to a third person;

    (3) the defamatory statement was published to a third person; and

    (4) the plaintiff’s reputation suffered injury as a result of the statement.”

    Cwelinsky v. Mobil Chemical Co., 837 A.2d 759 (2004).

    Delaware“The plaintiff must plead the following five elements for a defamation action: (1) the defamatory communication; (2) publication; (3) that the communication refers to the plaintiff; (4) the third party’s understanding of the communication’s defamatory character; and (5) injury to the plaintiff.”

    Bloss v. Kershner, 2000 Del. Super. LEXIS 90, 2000 WL 303342, at *6 (Del. Super. Ct. Mar. 9, 2000).

    Florida· The statement was published;

    · The statement was false;

    · The defendant must have acted with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private citizen; and

    · Actual damages were incurred.

    Jews for Jesus, Inc. v. Rapp, 997 So. 2d at 1106.

    Georgia· There was a false statement about the plaintiff;

    · The false statement was communicated to a third party, and in the absence of a special privilege to do so;

    · There was fault on behalf of the defendant, amounting to at least negligence; and

    · The plaintiff suffered harm, unless the statement in question amounted to defamation per se.

    Smith v. Stewart, 660 S.E.2d 822, 828 (Ga. Ct. App. 2008).

    O.C.G.A. 51-5-1 (2010), et seq.

    Hawaii“In order to sustain a claim for defamation, the plaintiff must establish

    the following four elements: (a) a false and defamatory statement

    concerning another; (b) an unprivileged publication to a third party; (c) fault

    amounting at least to negligence on the part of the publisher [actual malice

    where the plaintiff is a public figure]; and (d) either actionability of the

    statement irrespective of special harm or the existence of special harm

    caused by the publication.”

    Gold v. Harrison, 962 P.2d 353, 359 (Haw. 1998).

    Idaho“In a defamation action, a plaintiff must prove that the defendant: (1) communicated information concerning the plaintiff to others; (2) that the information was defamatory; and (3) that the plaintiff was damaged because of the communication.”

    Irish v. Hall, 416 P.3d 975 at 979 (Idaho 2018).

    Illinois· The defendant made a false statement about the plaintiff;

    · The defendant made an unprivileged publication of that statement to a third party; and

    · The publication caused damages.

    Brennan v. Kadner, 814 N.E.2d 951 (App. Ct. Ill. 2004).

    Indiana· The defendant communicated a statement with defamatory imputation with malice or negligence;

    · The statement was published; and

    · The statement caused damages.

    Dugan v. Mittal Steel, 929 N.E.2d 184, 187 (Ind. 2010).

    Iowa“At common law, defamation involved the following elements: (1) publication, (2) of a defamatory statement, (3) which was false and (4) malicious, (5) made of and concerning the plaintiff, (6) which caused injury.”

    Bierman v. Weier, 826 N.W.2d 436, 444 (Iowa 2013).

    Kansas“The tort of defamation includes both libel and slander. The elements of the wrong include false and defamatory words communicated to a third person which result in harm to the reputation of the person defamed.”

    Luttrell v. United Tel. Sys., Inc., 683 P.2d 1292, 1293 (Kan. Ct. App. 1984).

    Kentucky“Four elements are necessary to establish an action: [1] defamatory language; [2] about the plaintiff; [3] which is published; and [4] which causes injury to reputation.”

    Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. Ct. App. 1981).

    Louisiana“Four elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.”

    Kennedy v. Sheriff of E. Baton Rouge, 935 So.2d 669, 674 (La. 2006)

    Maine“Common law defamation consists of:

    (a) a false and defamatory statement concerning another;

    (b) an unprivileged publication to a third party;

    (c) fault amounting at least to negligence on the part of the publisher; and

    (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”

    Lester v. Powers, 596 A.2d 65, 69 (Me.1991)

    Maryland“In summary, to establish a case of defamation, the plaintiff must show (1) that the defendant made a defamatory communication — i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement as being defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm.”

    Kairys v. Douglas Stereo, 83 Md. App. 667 (Md. Ct. Spec. App. 1990).

    Massachusetts· A defamatory statement was made about the plaintiff;

    · It was published without privilege to a third-party with the fault of at least negligence on the part of the defendant; and

    · The statement either caused the plaintiff economic loss or was of the type that is actionable without proof of economic loss (defamation per se).

    Oberg v. City of Taunton, 972 F.Supp.2d 174, 205 (D. Mass. 2013).

    Michigan· A false and defamatory statement was made concerning the plaintiff;

    · The publisher made an unprivileged communication to a third party with fault amounting at least to negligence on the part of the publisher; and

    · There was either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by the publication.

    Smith v. Anonymous Joint Enter., 793 N.W.2d 533, 540 (Mich. 2010).

    Minnesota“The elements of defamation require the plaintiff to prove that a statement was false, that it was communicated to someone besides the plaintiff, and that it tended to harm the plaintiff’s reputation and to lower him in the estimation of the community.”

    Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn.1994).

    Mississippi“To establish a claim for defamation, a plaintiff must prove the following elements:

    (1) a false and defamatory statement concerning plaintiff;

    (2) unprivileged publication to third party;

    (3) fault amounting at least to negligence on part of publisher;

    (4) and either actionability of statement irrespective of special harm or existence of special harm caused by publication.”

    Armistead v. Minor, 815 So. 2d 1189, 1193 (Miss. 2002).

    Missouri“The elements of defamation in Missouri are: 1) publication, 2) of a defamatory statement, 3) that identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6) damages the plaintiff’s reputation.”

    Overcast v. Billings Mutual Ins. Co., 11 SW.3d 62 (Mo. 2000).

    Montana“Slander is a false and unprivileged publication other than libel that:

    (1) charges any person with crime or with having been indicted, convicted, or punished for crime;

    (2) imputes in a person the present existence of an infectious, contagious, or loathsome disease;

    (3) tends directly to injure a person in respect to the person’s office, profession, trade, or business, either by imputing to the person general disqualification in those respects that the office or other occupation peculiarly requires or by imputing something with reference to the person’s office, profession, trade, or business that has a natural tendency to lessen its profit;

    (4) imputes to a person impotence or want of chastity; or

    (5) by natural consequence causes actual damage.”

    Section 27-1-803, Montana Code Annotated.

    “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation that exposes any person to hatred, contempt, ridicule, or obloquy or causes a person to be shunned or avoided or that has a tendency to injure a person in the person’s occupation.”

    Section 27-1-802, Montana Code Annotated.

    Nebraska“A claim of defamation requires (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”

    Nolan v. Campbell, 690 N.W.2d 638 (Neb. Ct. App. 2004).

    Nevada· A false and defamatory statement was made concerning another person;

    · An unprivileged publication was made to a third party;

    · There was fault amounting at least to negligence on the part of the publisher; and

    · There was either actionability of the statement irrespective of special harm, or the existence of special harm caused by the publication.

    People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1272 (Nev. 1995).

    New Hampshire“To establish defamation, there must be evidence that a defendant failed to exercise reasonable care in publishing, without a valid privilege, a false and defamatory statement of fact about the plaintiff to a third party”

    Indep. Mechanical Contractors v. Gordon T. Burke & Sons, 138 NH 110 (NH. 1993).

    New Jersey· There was an assertion of a false and defamatory statement concerning another person;

    · The statement was published unprivileged to a third party;

    · There was fault amounting at least to negligence by the publisher; and

    · The plaintiff was damaged by the statement.

    DeAngelis v. Hill, 180 N.J. 1 (N.J. 2004).

    New Mexico“To establish the claim of defamation on the part of defendant, the plaintiff has the burden of proving each of the following contentions:

    [(1) The defendant published the communication; and]

    [(2) The communication contains a statement of fact; and]

    [(3) The communication was concerning the plaintiff; and]

    [(4) The statement of fact was false; and]

    [(5) The communication was defamatory; and]

    [(6) The person[s] receiving the communication understood it to be defamatory; and]

    [(7) The defendant [knew that the communication was false or negligently failed to recognize that it was false] [or] [acted with malice]; and]

    [(8) The communication caused actual injury to the plaintiff’s reputation; and]

    [(9) The defendant abused [its] privilege to publish the communication.]”

    NM UJI 13-1002.

    New York· A false statement was published to a third party without privilege or permission;

    · The statement was made with fault amounting to at least negligence; and

    · The statement amounts to defamation per se or causes special harm to the plaintiff.

    Dillon v City of New York, 704 NYS2d 1 (N.Y. App. Div. 1999).

    North Carolina· There was a false statement of fact of and concerning the plaintiff;

    · The statement caused injury to the plaintiff’s reputation; and

    · It was published to a third person.

    Boyce & Isley v. Cooper, 568 SE 2d 893 (N.C. Ct. App. 2002)

    North Dakota“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes the person to be shunned or avoided, or which has a tendency to injure the person in the person’s occupation.”

    N.D.C.C. § 14-02-03.

    “Slander is a false and unprivileged publication other than libel, which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes to the person the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure the person in respect to the person’s office, profession, trade, or business, either by imputing to the person general disqualifications in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to the person’s office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to the person impotence or want of chastity; or 5. By natural consequence causes actual damage.”

    N.D.C.C. § 14-02-04.

    Ohio
    • A false statement was made about the plaintiff;
    • It was published without privilege to a third party;
    • The statement was made with fault of at least negligence on the part of the defendant: and
    • The statement was either: (a) defamatory per se or (b) caused special harm to the plaintiff.

    Gosden v. Louis, 116 Ohio App.3d 195, 206 (9th Dist. 1996)

    Oklahoma“Libel is a false or malicious unprivileged publication by writing, printing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.”

    Okla. Stat. tit. 12, § 1441.

    “Slander is a false and unprivileged publication, other than libel, which:

    1. Charges any person with crime, or with having been indicted, convicted or punished for crime.

    2. Imputes in him the present existence of an infectious, contagious or loathsome disease.

    3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.

    4. Imputes to him impotence or want of chastity; or,

    5. Which, by natural consequences, causes actual damage.”

    Okla. Stat. tit. 12, § 1442.

    Oregon“The conduct necessary for a defamation claim is: 1) the making of a defamatory statement; 2) the “publication” of the defamatory material; and 3) a resulting special harm (unless the defamatory statement gives rise to presumptive special harm).”

    L&D of Or., Inc. v. Am. States Ins. Co., 14 P.3d 617 (Or. Ct. App. 2000).

    Pennsylvania· The communication was defamatory in character regarding the plaintiff;

    · It was published by the defendant;

    · The recipient understood its defamatory meaning and that it was intended to be applied to the plaintiff

    · There was special harm to the plaintiff resulting from its publication; and

    · The publication constituted abuse of a conditionally privileged occasion.

    42 Pa.C.S. § 8343(a)(1-7).

    Rhode Island“The elements of a cause of action for defamation are: (1) the utterance of a false and defamatory statement concerning another; (2) an unprivileged communication to a third party; (3) fault amounting to at least negligence; and (4) damages, unless the statement is actionable irrespective of special harm.”

    Nassa v. Hook-SupeRx, Inc., 790 A.2d 368, n.10 (R.I. 2002).

    South Carolina“We therefore require a plaintiff to prove the following four elements to state a claim for defamation: “(1) a false and defamatory statement was made; (2) the unprivileged publication was made to a third party; (3) the publisher was at fault; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.”

    Fountain v. First Reliance Bank, 730 S.E.2d 305 (S.C. 2012).

    South Dakota“Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

    SDCL 20-11-3.

    “Slander is a false and unprivileged publication, other than libel, which:

    (1) Charges any person with crime, or with having been indicted, convicted, or punished for crime;

    (2) Imputes to him the present existence of an infectious, contagious, or loathsome disease;

    (3) Tends directly to injure him in respect to his office, profession, trade, or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profit;

    (4) Imputes to him impotence or want of chastity; or

    (5) By natural consequence, causes actual damage.”

    SDCL 20-11-4.

    Tennessee“To establish a prima facie case of defamation in Tennessee, the plaintiff must establish that: 1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement.”

    Sullivan v. Baptist Memorial Hosp., 995 SW 2d 569 (Tenn. 1999).

    Texas· There was a published statement;

    · The statement was defamatory and concerning the plaintiff, and

    · The defendant acted with either actual malice (if the plaintiff was a public official or public figure) or negligence (if the plaintiff was a private figure) regarding the truth of the statement.

    WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).

    Utah· The defendant published the statements;

    · The statements were false, defamatory, and not subject to any privilege;

    · The statements were published with the requisite degree of fault; and

    · The publication resulted in damage to the plaintiff.

    West v. Thomson Newspapers, 872 P.2d at 1007-08.

    Vermont“The general elements of a private action for defamation (libel and/or slander) are: (1) a false and defamatory statement concerning another; (2) some negligence, or greater fault, in publishing the statement;[1] (3) publication to at least one third person; (4) lack of privilege in the publication; (5) special damages, unless actionable per se; and (6) some actual harm so as to warrant compensatory damages.”

    Lent v. Huntoon, 470 A.2d 1162 (Vt. 1983).

    Virginia· An actionable publication was made (a) with a false statement (b) of and concerning the plaintiff with (c) requisite intent.

    Jackson v. Hartig, 274 Va. 219, 228 (Va. 2007).

    Washington“A prima facie defamation claim requires a plaintiff to prove falsity, an unprivileged communication, fault, and damages.”

    Seaquist v. Caldier, 438 P.3d 606, 612 (Wash. 2019).

    Washington, D.C.· The defendant made a false and defamatory statement concerning the plaintiff;

    · The defendant published the statement without privilege to a third party;

    · The defendant’s fault in publishing the statement amounted to at least negligence; and

    · Either the statement was actionable as a matter of law, irrespective of special harm, or that its publication caused the plaintiff special harm.

    Doe v. Burke, 91 A.3d 1031 (D.C. 2014)

    West Virginia“In West Virginia, the essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a non-privileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury.”

    Crump v. Beckley Newspapers, Inc., 320 S.E.2d 70, 77 (W. Va. 1983).

    Wisconsin· A false statement was communicated by speech, conduct, or in writing to a person other than the person defamed; and

    · The communication was unprivileged and harmed one’s reputation so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her.

    Torgerson v. Journal/Sentinel, Inc., 563 N.W.2d 472 (Wisc. 1997).

    Wyoming“A defamatory communication is one which tends to hold the plaintiff up to hatred, contempt, ridicule or scorn or which causes him to be shunned or avoided; one that tends to injure his reputation as to diminish the esteem, respect, goodwill or confidence in which he is held.”

    Tschirgi v. Lander Wyoming State Journal, 706 P.2d 1116, 1119 (Wyo.1985).

    This chart provides an overview of each state’s requirements concerning the elements of a defamation claim. However, there are other small differences in requirements and processes among the states.

    To illustrate this fact, below we examine four states and their pleading requirements, statutes of limitations, and Anti-SLAPP laws. We also determine whether they recognize the innocent construction rule, which requires courts to accept an innocent interpretation of a statement when it can have both a defamatory and innocent meaning.

    Four Examples of Differences in State Defamation Lawsuit Requirements

    Ohio Defamation Lawsuit Requirements

    Ohio’s Pleading Standard For Defamation

    Ohio’s pleading standards do not require the plaintiff to include the defamatory statements in the complaint. However, the plaintiff must include enough information to convey the general substance of the claimed defamation. This is called a Notice Pleading Standard.

    Ohio’s Defamation Statute of Limitations

    Plaintiffs have within one year after the cause of action accrued to bring their defamation claim against the defendant.

    Generally, a defamation action “accrues” on the date that the defamed party (the plaintiff) first discovers the defamation. However, determining when the cause of action accrues in the state of Ohio is often an uncertain matter because Ohio courts have consistently followed the single publication rule (mentioned above).

    Does Ohio Have an Anti-SLAPP Law?

    Ohio has no Anti-SLAPP laws to stop strategic lawsuits against public participation (SLAPP).

    Innocent Construction Rule in Ohio

    If an allegedly defamatory statement has both innocent and defamatory interpretations, the defamatory meaning should be ignored and the plaintiff’s defamation claim will fail.

    New York Defamation Lawsuit Requirements

    New York’s Pleading Standard For Defamation

    New York has a heightened pleading standard that requires the plaintiff not only to include the actual defamatory statement in the complaint, but also to provide information concerning when, where, and the manner in which the statement was made.

    New York’s Defamation Statute of Limitations

    Plaintiffs have within one year of the date of the defamatory publication to bring their defamation claim against the defendant.

    Does New York Have an Anti-SLAPP Law?

    New York’s Anti-SLAPP law can be found in Civil Rights Law §76-a.

    Innocent Construction Rule in New York

    When a defamatory statement contains ambiguity, New York does not automatically require courts to accept the innocent meaning and reject the defamatory meaning.

    California’s Defamation Lawsuit Requirements

    California’s Pleading Standard For Defamation

    California’s defamation laws have higher pleading standards for defamation than many other states, such as requiring plaintiffs to include the actual defamatory words in their complaint.

    California’s Defamation Statute of Limitations

    Plaintiffs have within one year of the date of the defamatory publication to bring their defamation claim against the defendant.

    Does California Have an Anti-SLAPP Law?

    California does not have an Anti-SLAPP statute. However, it does have a court rule, Cal. Civ. Proc. Code § 425.16, which allows victims of SLAPP lawsuits an opportunity to dismiss the case early in the litigation.

    Innocent Construction Rule in California

    The state of California has specifically refused to accept the innocent construction rule.

    Texas’s Defamation Lawsuit Requirements

    Texas’s Pleading Standard For Defamation

    Texas defamation law only requires plaintiffs to provide enough information in the complaint to give the defendant notice as to what the plaintiff’s case is about.

    Texas’s Defamation Statute of Limitations

    Plaintiffs have within one year after they discover, or in the exercise of reasonable diligence, should have learned of the defamatory publication to bring their defamation claim against the defendant.

    Does Texas Have an Anti-SLAPP Law?

    Texas does not technically have an Anti-SLAPP statute, but it does have a court rule, Tex. Civ. Prac. & Rem. Code § 27.003(a), which provides similar benefits. This rule allows a defendant in a defamation lawsuit to file a special motion to dismiss when they are defending a lawsuit in response to the defendant’s First Amendment rights.

    Innocent Construction Rule in Texas

    It is unknown if Texas courts will follow the innocent construction rule because there are no reported cases in Texas deciding whether to accept this rule.

    How to Find Your State’s Defamation Requirements

    There are many online resources available to learn more information about each state’s unique defamation lawsuit requirements. Sometimes a simple Google search or a perusal of Google Scholar (a free resource to find copies of court opinions) can help you find the answer to your question.

    You can also consult your state, county, and/or city bar association for information. These professional attorney organizations have resources to help you find an attorney, and they can also direct you to additional informational resources.

    Online legal guides and encyclopedias like Nolo, the Legal Information Institute, and HG.org also contain helpful relevant information. Or, you can consult one of our more than two dozen Minc Law defamation law state guides for more specific information about your state’s requirements.

    Minc Law Legal Research Tip: The internet is an amazing resource for legal information—but be careful with what you find. Laws constantly change and, unfortunately, not all online resources immediately update their information to reflect these changes.

    What to Look For When Hiring a Defamation Lawyer

    Choosing a lawyer can be an intimidating process. After all, it can be overwhelming to try to find the right representative when you do not fully understand the process in which they will be representing you.

    That is why the first step in learning how to retain a defamation attorney is to understand what they do.

    What Does a Defamation Attorney Do?

    A defamation attorney helps clients with their defamation legal issues. This help includes suing someone else for making defamatory statements, as well as defending clients accused of defamation. Some defamation lawyers choose to focus on either bringing or defending cases.

    In the practice of defamation law, a defamation attorney completes various legal tasks in their day-to-day, such as:

    • Filing motions;
    • Going to court (whether for trial or a pre-trial hearing);
    • Negotiating with opposing counsel;
    • Creating legal strategies;
    • Completing legal research;
    • Counseling clients on which legal path to take;
    • Preparing legal documents, such as contracts, pleadings, and motions; and
    • Identifying key legal issues.

    This last task is one of the most important tasks a defamation lawyer will accomplish. Hearing a set of facts and identifying the legal claims (or defenses) a client might have is likely difficult for the client to achieve on their own.

    Have you ever heard the saying, “You don’t know what you don’t know”? Nowhere is this saying more applicable than in the practice of law.

    A good defamation lawyer will not only find and handle legal issues you did not know about but help you figure out how to address them.

    Make sure to check out our detailed blog post explaining the benefits of hiring a defamation attorney.

    How to Choose a Defamation Lawyer

    Choosing the right defamation attorney can sometimes mean the difference between winning or losing your case. In other situations, hiring the wrong attorney may be less dramatic, but it might cost you more money or unnecessary stress.

    Reading commonly asked questions about internet defamation lawyers is a good place to get a rough idea of the practice of defamation law. But when it comes to finalizing your decision, you should consider the following questions.

    What is the Lawyer’s Level of Experience & Expertise?

    Law is similar to medicine in that there are plenty of generalists out there who can handle most of the problems thrown at them. However, if you have a particular problem and want the best legal representation (or medical care) possible, you may want to hire someone who focuses his or her professional practice on your specific issue.

    A lawyer that handles a defamation case every now and then can often provide sufficient legal representation, especially if you have a generic defamation problem. But if your legal concern involves novel legal issues or is located in a part of the country with which they are unfamiliar, you risk receiving substandard legal services or at the very least, overpaying for the legal services you receive.

    When choosing a defamation lawyer, make sure that they have enough knowledge and familiarity not just to win your case, but handle it in a cost-effective and prompt manner.

    Do They Understand Your Legal Issues & Ultimate Goals?

    Perhaps you have heard the saying, “when all you have is a hammer, all you see are nails.” Some lawyers are so used to handling the same type of case that they assume all their clients have the same legal problems and goals.

    This assumption might be true most of the time—but in situations when it is not, it leads to insufficient legal advice for the client. Alternatively, there could be a scenario where your ultimate goals are not realistic, but your attorney does not know that and is therefore unable to advise you accordingly.

    So before hiring a lawyer, make sure that you are both on the same page. It is much easier to hire a different attorney at the beginning of a matter than to change representation in the middle of a case.

    Can You Afford the Lawyer’s Services?

    Occasionally, a defamation victim may find the perfect fit in an attorney, but they cannot afford to pay for that attorney’s services. If this situation happens to you, you may need to hire someone else. But before you move on to the next option, ask the attorney in question about modified billing arrangements or payment plans (ex. Retainer fee financing).

    When deciding if you can afford an attorney’s fees, do not simply focus on their billable rates alone. Think about what they charge in relation to how much money is at stake and how important it is to win your case.

    What might initially feel like something you cannot afford might suddenly feel like a bargain when you consider the alternative of losing your case because you hired a less-experienced attorney or decided to sue without the help of a lawyer.

    At Minc Law, we aim to be as transparent as possible about the potential costs of our services and representation and have created a comprehensive Pricing Page for prospective clients. We typically use a retainer structure for litigation, and non-litigation services. Guaranteed content removal services, on the other hand, are billed on a flat fee basis. For a detailed explanation of the retainer fee agreement billing structure, check out the video below, where paralegal Melanie Hughes goes over the key benefits.

    Video: Attorney Retainer Fee Agreement: What is It & How Does It Work?

    Video Placeholder

    Watch

    Where is the Lawyer Located?

    In today’s digital world where Zoom calls and remote work are becoming the norm, it may seem outdated to worry about the physical location of your attorney’s office. However, your lawyer’s office location is about more than the convenience of being able to meet in person.

    Since each state has different requirements, it matters that you choose an attorney with knowledge applicable to your area.

    Not only will the lawyer’s proximity to the court save you money in legal fees (since they will spend less billable time traveling), but they will be more familiar with that state’s laws, the court, and the court’s idiosyncrasies. They likely have knowledge of the judges and court personnel, which can sometimes provide a “home field advantage” in a case.

    How Responsive is the Lawyer?

    Attorneys are extremely busy people—but the best ones will still find time to promptly respond to a client’s questions or concerns. Well-organized attorneys make it a habit to respond to emails as close to the same day as possible.

    Unfortunately, many attorneys do not have this reputation. Many of their clients are kept in the dark as to the status of their case or must wait for days to hear a response in any form from their lawyer’s office.

    If you know you will be anxious about your case, you may want the fastest response time possible from an attorney. If the idea of waiting more than a day to receive a response bothers you, make it a priority to find an attorney with a good reputation for responding to clients quickly.

    Do You Like the Attorney?

    Likeability is not the most important factor to consider when choosing an attorney, but it is a nice bonus.

    The more you like your attorney, the more comfortable you will be around them. In turn, they will be more comfortable around you. This level of ease is helpful when facilitating communication and discussions between you and your attorney.

    Do You Trust the Attorney to Adequately Represent You?

    Bringing a defamation lawsuit may be one of the most stressful times in your life. There will also likely be a great deal at stake, such as your savings, your business, and your family.

    If you choose a representative in such a key moment in your professional or personal life, you need to be able to trust them.

    It is understandable to worry about the consequences of losing your case, or what kind of questions to expect during a deposition or at trial. But you should not have to worry about whether you can trust your attorney to act in your best interests.

    Basic integrity should go without saying—so if it does not, perhaps you need a different lawyer.

    Curious as to why you should hire us at Minc Law to help resolve your internet defamation or online harassment issue? Check out our article ‘5 Reasons Why You Should Choose Minc Law’.

    How Do You Hire a Defamation Lawyer?

    Now that you know the questions to ask when choosing a lawyer, how do you find the answers to those questions? Thankfully, there are plenty of resources for finding a lawyer who is a good fit for your needs.

    Check Out the Attorney or Law Firm’s Website

    First, check the attorney’s website for information such as the location of the firm, the practice areas offered, the names of the lawyers on the team, and the lawyers’ credentials. Also, check for less obvious clues about the firm’s success, such as:

    • Does the website have a large selection of legal resources and if so, how often are they updated?
    • What kind of successes has the firm had?
    • Does the firm focus primarily on defamation law, or on some other area of practice?

    See if the Attorney or Firm Has a Social Media Presence

    Second, see if the law firm has a social media presence. Most likely, any information available on social media will be the same as the firm’s website. But how savvy does the law firm seem to be on social media?

    If a law firm or attorney claims to handle online defamation cases but appears not to understand how Facebook or Twitter works, that could be a red flag.

    Ask Friends, Family, & Contacts For Referrals

    Third, ask for referrals. As with hiring any other professional, asking former or current customers or clients is always a helpful way to learn more about the professional. Referrals are especially helpful when they come from someone you already know and trust.

    Check Out Their Online Reviews

    Fourth, read online reviews. Of course, you should take these opinions with a grain of salt, as you would any other online review. But if you see a rating or observation about the law firm that bothers you, do not hesitate to investigate further or ask the lawyer about your concern.

    Prepare a Checklist of Questions

    Fifth, prepare a checklist of questions to ask any lawyer you are seriously considering hiring. It may be helpful to conduct an online search to develop questions to ask concerning billing, communication, and background information.

    Most likely, the sample questions you find will be very general, although perfectly applicable to the defamation attorney hiring process. If you want a focused set of questions to ask a potential defamation attorney, you can request our free 33 Questions to Ask When Hiring an Internet Defamation Lawyer Checklist.

    Sixth, ask for a consultation with the attorney. These consultations will almost always be free, at least for the first 10 to 30 minutes. Even after a few moments with the attorney, you should have a good idea not only of the attorney’s qualifications but whether you like them and if they are a good fit for your legal needs.

    Curious about what to expect at your first Minc Law consultation? Read our post by paralegal Darcy Buxton ‘Thinking About Contacting Minc Law? Here’s What to Expect’.

    How Much Do Defamation Lawsuits Cost?

    The cost to bring a defamation lawsuit depends on numerous variables, including:

    • A particular court’s filing fees,
    • The lawyer’s billable rate and fee structure,
    • Where the defamation took place and how extensive it is,
    • The defamation law that applies to your case,
    • The availability of evidence to prove your case,
    • How easy it is to identify and find the defendant(s),
    • Whether the defendant will contest your allegations,
    • The amount of discovery needed,
    • How long the litigation lasts,
    • Whether time is of the essence,
    • The need to hire local counsel and their billable rates,
    • The number of court appearances required,
    • The amount of monetary damages requested, and
    • The kind of legal or non-legal relief requested.

    As you can see, there is no simple answer to determining what your total defamation lawsuit cost will run you. But to help give you an idea of what to expect, here are a few rough numbers:

    • On the low end, you can expect your defamation lawsuit to cost $5,000 to $7,500.
    • On the upper end, your case may cost you between $30,000 and $60,000, with an average monthly cost of $4,000 to $6,000.
    • The average online defamation lawsuit often costs about $14,000 to $16,000 for most cases at Minc Law.

    To learn more about what Minc Law charges and our firm’s fee structure, please see our comprehensive post ‘How Much Does a Defamation Lawsuit Cost?’ and our Internet Defamation Services Pricing Page.

    Work With Minc Law to File a Defamation Lawsuit

    A defamation lawsuit is a weighty and potentially very expensive undertaking. Deciding to sue for defamation is not one you should make quickly or take lightly. Even with a strong case, it can take many months to reach your ultimate goal—and there is also a good chance that there could be cheaper, faster, and just as effective options available.

    At Minc Law, defamation law is at the core of what we do—meaning that we have proven experience and intimate knowledge of all the twists and turns of a defamation case.

    ★★★★★

    “Unbelievable! I am a C Suite executive who has dealt with the top law firms and Aaron, Daniel, and Kaelynn and team are superior in the quality and execution of matters than most of these firms. When I had an urgent issue arise related to defamatory content online, Aaron and his team jumped on the matter immediately and within a few days had the content down and deleted. Moreover, we have not stopped there and have initiated litigation to ensure that these are repercussions for such comments. I am writing this out of my own volition and at my urging because I would like others to know that if you have any issues with content online about yourself, you don’t have to feel helpless and can proactively identify and hold those responsible accountable. Thank you Minc Law firm. From bottom of my heart.”

    Anonymous, Dec 11, 2020

    If you are a victim of defamation and have further questions about your situation and want to learn more about your options, reach out today to schedule your free, initial no-obligation consultation by contacting a chat representative, filling out our contact form, or calling us at (216) 373-7706.

    Contact Minc Law

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