What is Defamation of Character? How to Prove Online Defamation Featured Image

What is Defamation of Character? How to Prove Online Defamation

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    Defamation of character, also known as defamation, refers to a false statement made to a third party that causes damage to the reputation of another person. Defamation that occurs over the Internet is referred to as “Online Defamation” or “Internet Defamation.”

    While defamation can sometimes result in criminal liability, in the vast majority of cases, it is a tort. This means the aggrieved party can file a civil lawsuit in court to recover damages.

    Below we explain what online defamation is, including:

    • Different types of defamation,
    • How to establish a claim for defamation,
    • Damages a plaintiff can recover in a defamation lawsuit, and
    • Defenses that a defendant can assert to allegations of defamation.

    What is Defamation of Character?

    Defamation is a broad term that can be further broken down into two distinct types of defamatory statements. Every state has its own defamation laws, but traditionally, there are two types of defamatory statements:

    • Libel: a defamatory statement that is conveyed to a third party through written publication. In addition to text, “written publication” can include pictures, videos, and other similar forms of media.
    • Slander: a defamatory statement that is published to someone else through spoken communication.

    The primary difference between slander and libel is that libel is written and slander is spoken. Libel includes defamation that is not just printed on paper but is published, recorded, or preserved in either a digital or physical format.

    If the defamation is verbal, it is slander. If the defamation is in any other type of publication medium than spoken, it will be libel. A good way to remember the difference is to know that both “slander” and “speak” begin with the letter S.

    With the ubiquity of the Internet, most defamation litigation today involves defamatory statements made on the web. In these cases, the defamatory statements will be referred to as online defamation or Internet defamation.

    This difference matters if you are looking to file a defamation lawsuit, as you must take great care to assert the correct defamation claim. If a plaintiff asserts the incorrect legal claim, not only will it be dismissed by the court, but they might be barred from asserting the correct legal claim later on.

    Defamation may also go by other less well-known names, such as:

    • Defamation of character,
    • Character defamation,
    • The tort of defamation,
    • Calumny,
    • Vilification,
    • Traducement,
    • Famacide,
    • Disparagement.

    Depending on the context, defamation might also be referred to by other terms, including:

    • Online defamation,
    • Internet defamation,
    • Criminal defamation,
    • Business defamation.

    Can a Defamer Be Held Criminally Liable For Publishing False Statements?

    In most circumstances, suing for a defamatory statement involves filing a civil suit. But on rare occasions, it can also lead to criminal prosecution. Criminal defamation cases have three notable characteristics.

    First, the prosecution will occur under state law; there is no federal criminal law in the United States that pertains to defamation.

    Second, not all states have criminal defamation laws.

    Third, even in states with criminal defamation laws, these laws are rarely enforced. If they are enforced, defamers can face penalties that include fines and jail time. A conviction can only occur if the prosecution proves beyond a reasonable doubt that a defendant knew statements were false.

    Most states do not have criminal defamation laws due to constitutional concerns, such as infringing on the First Amendment. However, a defamatory statement could lead to criminal prosecution in limited situations, such as:

    • Violation of a restraining order;
    • The statement constitutes contempt of court because it violates a court order; or
    • The defamatory statement is a part of another crime, like online harassment, blackmail, or sextortion.

    Businesses Can Also Sue for Defamation

    Like individuals, litigation is a possible recourse for business owners, CEOs, sole practitioners and other victims of defamation of a company or business. Depending on the state, there are two major types of business defamation claims:

    Injurious falsehood is similar to defamation involving an individual, but with two key differences.

    First, damages are limited to financial or economic harm to the business and do not include reputational damage. Second, to prove injurious falsehood, a plaintiff must show that the defamer acted with malice.

    Unfair or deceptive trade practices concern actions by another business or individual that are done to convince the general public to purchase a service or product.

    Elements of a Claim for Defamation of Character

    Generally speaking, a plaintiff must prove the following four elements:

    • The defendant made a false statement about the plaintiff,
    • The defendant communicated the false statement to a third party,
    • The defendant acted with at least a negligent level of intent, and
    • The defendant’s false statement and communication to a third party caused damage to the plaintiff.

    Keep in mind that the exact requirements for asserting a defamation claim can vary based on jurisdiction.

    Like most other civil torts, defamation claims must be brought within a certain period of time. This is called the statute of limitations. In most states, the defamation statute of limitations to file a lawsuit is one to three years.

    What is the Difference Between a Private & Public Figure in a Defamation Case?

    The law does not view all defamation plaintiffs the same. The differences among defamation plaintiffs can affect the burden of proof a plaintiff must meet to win a defamation case.

    If a plaintiff is a private figure, they must only prove that a defendant acted with ordinary negligence when publishing a defamatory statement. A private person will typically include the average person who is not at the forefront of public controversy.

    If a plaintiff is a public figure, then they have a much bigger burden to overcome when proving defamation. Instead of showing negligence, a plaintiff must show a defendant acted with actual malice.

    Courts require a higher burden for public figures for multiple reasons. One reason is that many public figures choose to be in the public eye, and therefore subject to additional scrutiny from society. Another reason is the belief that public figures can defend themselves in public when defamatory statements are made.

    How Are Defamation Per Se & Defamation Per Quod Different?

    Defamation per se (also called slander per se) is a defamatory statement that is so clearly insulting, inflammatory, and/or harmful to the victim, that the law will assume a plaintiff suffered damages from that defamatory statement.

    In contrast, defamation per quod is a type of defamatory statement that requires a plaintiff to:

    • Present extrinsic evidence to show that a statement was damaging and false; and
    • Plead special damages with particularity.

    In some states, defamatory per quod can include statements that are clearly defamatory but do not otherwise fall under one of the specifically identified types of defamation per se.

    Examples of Three Different State Defamation Laws & Requisite Elements For a Defamation Claim

    Elements of a Claim of Defamation of Character in Texas

    Texas defamation law largely parallels the law in most other states. A plaintiff must establish the following three elements to prove defamation:

    • The defendant published a false statement,
    • The statement was defamatory and concerned the plaintiff, and
    • In regards to the truth of the defamatory statement, the defendant acted with malice (if the plaintiff is a public official or figure) or negligence (if the plaintiff is a private figure).

    The statute of limitations in Texas for a defamation claim is one year.

    Elements of a Claim of Defamation of Character in Ohio

    Ohio defamation law requires a plaintiff to establish five elements to successfully sue for defamation. The five elements include:

    • A false statement,
    • The false statement concerns the plaintiff,
    • The defamatory statement was published without privilege to a third party,
    • The defendant acted with at least a negligent level of intent, and
    • The statement was either defamatory per se or defamatory per quod.

    Ohio’s statute of limitations for starting an action for defamation is one year.

    Elements of a Claim of Defamation of Character in California

    California defamation law recognizes the tort of defamation. But there are nuances concerning the elements needed for a successful claim. In California, a plaintiff must establish the following four elements to prove defamation:

    • The defendant made a false statement of fact,
    • The false statement of fact was published to a third party without privilege,
    • The defendant acted with at least a negligent level of intent, and
    • The false statement was either defamatory per se or defamatory per quod.

    The statute of limitations for defamation in California is one year.

    Texas, California, and Ohio demonstrate how each state has its own defamation pleading requirements, even though their general concept of defamation is the same. For example, a plaintiff must plead different sets of facts if they are a public figure as opposed to a private individual.

    Common Defenses to Online Defamation

    When accused of defamation, a defendant has several potential defenses to avoid liability. These defenses can work in two ways:

    • By showing that a defamatory statement does not qualify for all the requisite elements needed to prove a defamation claim;
    • By acknowledging the defamatory nature of a statement, but arguing that a privilege applies that immunizes the defendant from liability.

    How is Truth a Defense to Defamation?

    Truth is an absolute defense to a claim of defamation, so by definition, a statement cannot qualify as defamation unless it is false. But this falsity must relate to more than a minor detail or technicality to establish a statement as defamatory.

    The substantial truth doctrine is a legal defense that states as long as a defendant can show that the “gist” or “crux” of the allegedly defamatory is true, they can successfully defend themselves against the allegation of defamation.

    Do Opinions Qualify as Defamatory Statements?

    To be liable for defamation, a defendant must make a false statement. But an opinion can be true, false, or somewhere in between.

    Therefore, a defendant can avoid liability for defamation using the opinion defense if they can show that the claimed defamatory statement cannot be verified as true or false because it was an opinion.

    A defendant who simply labels a statement as an “opinion” cannot automatically use opinion as a defamation defense. If the statement could be reasonably understood by someone else as a fact that can be verified or implies that the opinion is based on undisclosed false facts, then a defendant can still be liable.

    What Does it Mean For a Statement to Be Privileged?

    Within the defamation context, the defense of privilege enables a speaker to say or publish defamatory statements, but avoid liability. There are several types of privilege, with absolute privilege and qualified privilege being the most common forms.

    Absolute privilege provides full legal immunity to an individual who publishes defamatory statements. This immunity applies when statements are made with malicious intent or with no effort to verify the truthfulness of those statements. Absolute privilege typically applies in:

    • Judicial proceedings,
    • Official proceedings,
    • Executive actions.

    Qualified privilege (also known as common interest privilege) is not as broad as an absolute privilege. Qualified privileges will apply to specific situations where a speaker believes in good faith that they have a special reason to say or publish particular statements to a limited audience. The following is a list of common examples where qualified privilege will often apply:

    • A professor or employee writing a reference letter for a former student or coworker.
    • Statements made to law enforcement during the course of an investigation.
    • Reports made to government authorities concerning suspicions of child abuse.
    • Reports from judicial proceedings.

    Damages For Online Defamation

    In most civil suits, the primary form of legal recovery for a plaintiff is monetary damages. In the majority of defamation lawsuits, a successful plaintiff can recover any of the following three types of defamation damages:

    • Actual damages (also called compensatory damages),
    • Nominal damages,
    • Punitive damages.

    What Types of Actual Damages Can Be Leveled in a Defamation Case?

    There are two core types of actual damages: special and general. Special damages are intended to reimburse a plaintiff for actual economic losses, such as lost income. If asserting defamation per quod, most states require a plaintiff to plead special damages in his or her complaint.

    General damages are for reputational harm and emotional distress suffered by a plaintiff.

    How Can Nominal Damages Be Awarded in a Defamation Case?

    In certain situations, a plaintiff may easily prove an unlawful act but may have trouble proving the nature and extent of an injury that results from a defamatory statement. When this happens, a court may award nominal damages.

    Nominal damages are typically found in cases dealing with constitutional violations, where it is difficult to prove and quantify the harm or injury.

    The monetary damages awarded in these lawsuits are often small (but not always), hence the term nominal damages. So why do plaintiffs still seek them?

    It might be to obtain a moral victory or an injunction. Proving damages is part of a defamation claim. But most likely, it is to have the court officially acknowledge that a plaintiff’s legal rights have been violated. This can allow a plaintiff to seek other damages, like punitive damages, in a future lawsuit.

    Are Punitive Damages Recoverable in a Defamation Lawsuit?

    Yes. Punitive damages exist to punish and deter wrongful conduct, including defamation. To recover punitive damages, a plaintiff will usually have to show that a defendant published a defamatory statement(s) with actual malice or with reckless disregard as to its truthfulness. Courts can reduce excessive punitive damage awards on constitutional grounds.

    Why Defamation Plaintiffs Often Seek Equitable Relief

    In limited situations, a plaintiff can obtain not just money, but also equitable relief. Equitable relief is a type of legal remedy that involves the court ordering someone to do (or not do) something. An injunction is a common form of this type of court order.

    Despite not being monetary, equitable relief may be the most important type of relief in a defamation lawsuit. This is because equitable relief can force a defendant to take down defamatory materials and stop the continued publication of defamatory statements.

    While a plaintiff might be awarded monetary damages for the unlawful conduct by a defendant, this does not ultimately remove the defamatory content in question and stop its deleterious effects. Unless the defamatory content is removed (and stays offline), the harm does not stop. Equitable relief can also provide a plaintiff immediate relief in the event that the defendant (or a third party) repeats or republishes the same defamatory content again.

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    How to Sue For Defamation of Character: What Are the Limits of the Law?

    If you are the victim of online defamation of character, and determined that you have a valid legal claim (as discussed above), you can file a defamation lawsuit. However, there are several issues to consider, such as:

    • Determining the correct party to sue,
    • Whether the defamer’s identify is known or unknown,
    • Ensuring that you file your defamation claim within your state’s statute of limitations.

    Identify the Correct Party to Sue For Defamation of Character

    Defamation victims may sue the person making the defamatory statements, but they may not have much money to pay in damages. As a result, it might be tempting to also sue a website or platform that published the defamation. But that is not usually possible.

    Section 230 of the Communications Decency Act immunizes interactive computer service providers from defamation liability due to the actions of a third party. Specifically, interactive computer service providers will not be viewed as “publishers” when a third party publishes defamatory content.

    So when an individual uploads defamatory content on a social media account, the social media platform does not need to worry about being sued for defamation. We cover this in more detail in the video below, where we go over why Section 230 is important, how Section 230 applies to internet providers, social media platforms, and free speech, the pros and cons of the legislation, and significant court cases that have shaped how it is interpreted.

    Video: What is Section 230 of the Communications Decency Act?

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    Interactive computer service providers may sometimes face legal liability, but usually only when they become involved in an unlawful activity or they materially alter the published statement making it defamatory.

    File a John Doe Lawsuit to Identify Anonymous Internet Defamers

    In cases where the defamer is anonymous, the first step is to ask for legal relief that will allow a plaintiff to identify the anonymous defamer. This will usually consist of obtaining a subpoena and serving it on a website asking them to identify the anonymous poster. This is referred to as a John Doe lawsuit.

    When deciding these John Doe lawsuits, courts will conduct a balancing test when assessing a request to unmask an anonymous online poster or defamer. There are also social media forensics and online detective work that can sometimes identify the defamer.

    File Your Defamation of Character Lawsuit Within Your State’s Statute of Limitations

    To sue for defamation, you must act quickly and file suit before the respective defamation statute of limitations expires. Many states will require you to file suit within one year of when the statement was made. Even when the statute of limitations is not an issue, there is concern about loss of evidence.

    Servers get cleared, memories fade, and social media accounts are deactivated. If you take too long to file your defamation lawsuit, it may be impossible to gather enough evidence to win your case or convince a court to order an ISP or website host to reveal who made the defamatory statements.

    Online Defamation Tip: Suing for online defamation is not always a realistic possibility. This could be because it will take too long or cost too much money. Luckily, there are several litigation alternatives to consider. These include: sending a cease and desist letter, negotiating with website owners, sending a DMCA takedown notice, and establishing a strong online presence.

    Defamation of Character on Facebook & in the Workplace

    Most claims for defamation will typically involve someone’s personal or professional life. Two common places where defamation can occur are on Facebook and in the workplace.

    Defamation of Character on Facebook

    The more people that read or hear a defamatory statement, the more damaging it can do to a person’s reputation and life. So it is not surprising that slander on facebook is such a common occurrence and can create so many problems for people.

    To deal with these issues, Facebook has special reporting procedures in place for individuals who suspect they are the victim of defamation. Unfortunately, these procedures are not always enough to solve the problem.

    Defamation of Character in the Workplace

    Defamation at work can be particularly damaging given how a job can contribute not only to an individual’s self-worth but also their livelihood. The workplace is also a location where many people form friendships and professional connections. So when someone makes a defamatory statement about you at work, it can result in:

    • Losing your job,
    • Getting blocked from finding a new job,
    • Being ostracized or humiliated by coworkers,
    • Taking a pay cut or lost promotion,
    • Negative performance evaluations, and
    • Strained professional relationships.

    Workplace defamation can present particular challenges. For instance, it can be hard to separate a defamatory statement from office rumors, jokes, or innocent off-hand remarks.

    Let’s Put an End to Online Defamation Together

    If you believe you are the victim of online defamation, you need to act quickly. Stopping a nasty online poster or coworker may take the expertise of an internet defamation attorney.

    ★★★★★

    “I had a great experience with Minc Law. I’ve never hired an attorney in my life and didn’t know where to turn when I discovered that someone had posted damaging comments and a photo online about me. I Googled defamation attorneys and Minc Law was one of the first results. I spoke with Aaron Minc for my initial consultation. Aaron understood my situation and was able to quickly get me in touch with Alexandra Arko, who specialized in my type of situation. Alexandra quickly acted and knew all of the correct methods to get the damaging information removed in a matter of weeks. Definitely 5/5 stars and I would definitely recommend Alexandra and Minc Law for anyone that is stuck in a similar situation! Thank you Aaron and Alexandra !!”

    Jason, Oct 13, 2019

    Minc Law has extensive experience going after individuals who make defamatory statements and removing defamatory content from websites. To learn more and set up a free consultation, fill out our online contact form, use our Live Chat feature, or call us at 216-373-7706.

    Do you still have questions about internet defamation, or defamation lawsuits? Check out the video below to learn the answers to our most frequently asked questions from clients, including the definitions of libel and slander, whether defamation lawyers are criminal or civil lawyers, if an attorney in another state can represent you, how we identify anonymous perpetrators, and more.

    Video: Top 6 Questions We Get at Minc Law

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    Are you being defamed online? We will get it removed. Contact Minc Law today!

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