If you or your business are the target of a false statement, it is important to understand what the grounds of defamation of character are before exploring your legal options and filing suit. Differentiating between everyday criticism and legally actionable defamation is at the heart of striking a balance between free speech and protecting individuals’ reputations.
The grounds for a valid defamation of character claim revolve around four key elements. First, there must be a false statement presented as fact. Second, this statement must be communicated or published to someone other than the person it is about. Third, the statement was published with fault amounting to at least negligence on the part of the person making the statement. Fourth, this false statement caused harm to its subject.
At Minc Law, we have extensive experience navigating the ins and outs of U.S. defamation law. We have helped thousands of individuals and businesses remove over 50,000-plus pieces of defamatory content from the internet, unmask anonymous online defamers, file defamation lawsuits to compel the removal of content and monitor the internet for subsequent online attacks.
In this article, we will delve into the fundamental elements that define defamation of character and their implications.
What is Defamation of Character?
Defamation of character occurs when a false statement of fact about an individual or business is published to a third party, causing harm to their reputation. This can manifest in various forms, from being falsely accused of unprofessional behavior at work to a business being wrongly accused of engaging in unethical practices. Whether targeting a person or a corporation, defamation has the potential to cause significant reputational damage.
What Are the Key Types of Defamation of Character?
Defamatory statements take two primary forms: slander, which is spoken defamation, and libel, which refers to written or published defamation.
Examples of libel could include:
- Social media posts where false information is shared to undermine a business’s or individual’s reputation.
- Inaccurate and malicious reviews on platforms such as Yelp or Google that misrepresent a customer’s experience.
- False accusations on websites dedicated to exposing cheating or criminal behavior, potentially alleging infidelity or unlawful activities without basis.
- Incorrect or misleading articles in news media, where the facts have been distorted or misrepresented.
For slander, examples might include:
- Defamatory remarks made during a public meeting, where false statements are spoken in front of an audience.
- Spoken allegations in a livestream falsely accusing someone of misconduct or unethical behavior.
For further reading, please see our comprehensive guide explaining common defamation examples.
What Elements Do You Need to Prove in a Defamation of Character Claim?
In a defamation of character claim, the specific legal requirements may differ from state to state, but there are generally four core elements (sometimes five) that a plaintiff must establish to argue a case of libel or slander successfully.
Typically, a plaintiff will need to demonstrate:
- A false statement of fact about the plaintiff was made,
- This statement was communicated to a third party,
- The statement was made or communicated with at least a negligent level of intent, and
- It caused damage to the plaintiff’s reputation.
Ultimately, the effectiveness of a defamation claim hinges on the precise facts of the case, the exact language used, and the falsity of the statement. The emphasis is on dissecting these elements to build a compelling argument.
A False Assertion of Fact That is “Of and Concerning” the Plaintiff
The cornerstone of any defamation claim is the assertion that the statement made about you or your business was objectively false. For a statement to be considered defamatory, it cannot be true because truth is an absolute defense against defamation. However, the difference between truth and falsehood in this context is not always straightforward.
To understand what constitutes a true or false statement, several factors come into play:
- Substantive Truth: A statement may have minor inaccuracies yet still be regarded as true. The essence of the statement is what matters. If the core substance is true, it is generally not considered defamatory.
- Opinion vs. Fact: Courts have established that opinions, protected under the First Amendment, cannot be defamatory unless they imply an underlying fact. This distinction was notably addressed in Gertz v. Robert Welch, Inc., 418 US 323 (1974).
- Over-Generalization: Statements about specific actions or behaviors are deemed true if they are factual. However, exaggerating or implying that these actions are habitual when they are not can render the statement false.
- Speaker’s Belief: The speaker’s belief in the truthfulness of their statement does not necessarily protect them from defamation. However, an honest error might play into the assessment of negligence in the statement’s publication.
- Implied Defamation: Some false statements can be implied if they were meant to convey something defamatory.
A defamatory statement must also be “of and concerning” the plaintiff, meaning that it causes listeners or readers to reasonably understand that the statement is about a particular person. However, statements that do not explicitly name the individual or business may still be actionable if a reasonable person would understand it to be about the plaintiff.
This principle was notably illustrated in the high-profile case between Amber Heard and Johnny Depp in the summer of 2022. In that case, Heard wrote an op-ed post that did not specifically name Depp. Yet, the case hinged on the contention that the op-ed was clearly understood to be about him, given the context and evidence presented. Check out my TikTok I made about this:
This element typically prevents groups from suing for defamation unless the statement clearly identifies or implies specific individuals within the group. The Heard-Depp case underscores the complexity of defamation cases, especially when the connection between the statement and the plaintiff is not overt but inferred from the broader circumstances.
Publication: Communicated to a Third Party
For a statement to qualify as defamation, it must be published, meaning it was communicated to or read by a third party. This may be fulfilled if the defamatory statement reaches someone other than the defamer or the defamed party, regardless of whether the communication is private or public. A statement heard or read only by the plaintiff and the defendant does not meet the threshold for defamation.
Fault Amounting to At Least Negligence
In a defamation lawsuit, it is not enough to prove that a defamatory statement was made; the plaintiff must also prove the defendant acted with a certain level of intent or fault regarding the statement. This revolves around two key legal concepts: negligence and actual malice.
To meet the negligence standard, private figure plaintiffs (individuals who are not classified as public figures) must show that the defendant was careless or inattentive concerning the truth or falsity of the statement. This means the defendant failed to exercise reasonable care in verifying the accuracy of the information before communicating it.
The standard of actual malice is higher than negligence and is applied in cases involving public figures or matters of public concern. Actual malice occurs when the defendant knows that the statement is false or acts with reckless disregard for its truth or falsity. This means the defendant had actual knowledge of the statement’s inaccuracy or entertained serious doubts as to its truth but proceeded to publish it anyway.
These elements of fault – negligence and actual malice – are crucial in determining liability in defamation cases. They underscore the importance of the defendant’s state of mind and their approach to the truthfulness of the statement.
Causing Damage to the Plaintiff’s Reputation
In defamation lawsuits, a plaintiff must demonstrate that the defamatory statement caused reputational harm, resulting in damages. The burden of proof for determining damage to a plaintiff’s reputation depends on whether the allegedly defamatory statement is classified as ‘defamation per se’ or ‘defamation per quod’.
- Defamation Per Se: In cases of defamation per se, damages may be presumed due to the nature of the allegation. These types of false statements are considered so inherently damaging, such as false accusations of criminal behavior, possessing a loathsome disease, or engaging in misconduct in one’s profession, that the law allows us to “assume it is damaging.”
- Defamation Per Quod: In other cases, if allegations are not classified as ‘per se’, the law will not presume harm. The plaintiff must allege the harm suffered with more specificity and identify how they were damaged by the false statements along with the amount.
For further reading, please see our guide ‘What is Slander Per Se?’.
Examples That May Give Rise to a Valid Defamation Claim
To better understand what may constitute grounds for a defamation of character claim, it is useful to recognize the scenarios that can lead to a legitimate claim and those that typically do not. Here are some examples that may constitute a valid defamation claim:
- False Accusations in the Workplace: If an employee is falsely accused of stealing from their employer or engaging in misconduct, and this accusation is shared with other employees or third parties, it could be a valid workplace defamation claim.
- Misrepresentations in Media: A news article or blog post that falsely accuses a person of unlawful activities could be defamatory. The key is that the information presented is factually inaccurate and not merely a negative opinion.
- Fake Online Reviews: Posting fake reviews claiming a business engaged in fraud or provided harmful services, when untrue, can constitute defamation. This is especially true when the statements are made to harm someone’s reputation intentionally.
Defenses That May Preclude a Defamation of Character Claim
Defamation law, while designed to protect against harm to reputation, also offers a variety of defenses. These defamation defenses can be employed to negate a claim or mitigate potential legal consequences. It is important to understand these defenses, as they play a role in shaping the outcome of a lawsuit.
One of the primary defenses available to the defendant is the truth of the statement in question. Since a key element of a defamation claim is the falsity of the statement, proving the statement was true can be definitive. This includes statements that contain ‘minor inaccuracies’ but are considered ‘substantially true’, meaning the “gist” or “sting” of the statement is true.
For example, if a defendant posts on Facebook that Jane Doe committed theft, and she was indeed convicted of theft, the defendant’s statement is likely not defamatory. In their initial complaint, plaintiffs are generally expected to assert that the defendant’s statements were false.
Distinguishing between fact and opinion is crucial, as opinions generally do not constitute defamation. A fact can be proven true or false, whereas an opinion is a subjective belief that cannot be objectively verified.
For instance, if someone states that a particular dish is too salty, this is a matter of personal taste and cannot be objectively measured.
In defamation law, “privilege” refers to specific circumstances where a statement that might otherwise be considered defamatory is legally protected. Most states recognize various types of privileges, however, the two most prominent are absolute and qualified privilege.
Absolute Privilege: This type of privilege provides complete immunity from defamation liability, even if the speaker acts with actual malice. Absolute privilege is typically associated with statements made in specific settings, such as:
- Judicial proceedings, where statements made in the course of a trial or other legal processes are protected.
- Executive actions involving high-level governmental communications.
- Official or quasi-judicial proceedings, where statements made in the context of official duties or roles are shielded.
Qualified Privilege: Unlike absolute privilege, qualified privilege offers protection in more limited circumstances. It generally applies when the audience for the statement is restricted or when there is a public interest in allowing open communication, even if the information might not be entirely accurate.
Key aspects of qualified privilege include:
- The requirement that the statement is made in good faith.
- Common situations, such as an employer providing a reference for an employee, where honesty is expected but there might be some subjectivity or inaccuracy.
- Instances like a witness reporting a possible crime to the police, where the emphasis is on the importance of communication over absolute accuracy.
Qualified privilege typically requires a balance between the need for free communication in certain contexts and the potential harm of inaccurate statements. By recognizing these privileges, the law aims to protect essential communications in specific contexts from being hindered by the fear of defamation claims while still upholding the importance of truthfulness and the protection of reputations.
For reading on additional privilege defenses, please see our comprehensive article ‘Understanding the Defense of Privilege in Defamation Law’.
Statute of Limitations
The statute of limitations is the time frame within which a plaintiff must file a claim. This period varies from state to state, but it generally ranges between 1 to 3 years after the defamatory statement is published or communicated.
Understanding the statute of limitations is crucial for both plaintiffs and defendants in defamation cases. Plaintiffs need to be aware of these time constraints to ensure they file their claims within the legally allowable period. Meanwhile, defendants can use the statute of limitations as a defense, arguing that a claim is invalid if it is filed after the time limit has expired.
Single Publication Rule
One aspect of defamation is that each instance of publication can be considered a separate cause of action. This is a key reason why sharing defamatory content online can be risky from a legal standpoint. If you republish defamatory material, you may also be held liable and treated similarly to the person who originally made the statement. This concept of republication implies that every time a new person communicates the original defamatory statement, it is treated as a new instance of defamation.
Yet, there is a notable exception known as the single publication rule. Under this rule, if a single publication is read by multiple third parties simultaneously, it is considered published only once for the purposes of the statute of limitations (SOL). This is crucial as the SOL restricts a plaintiff’s ability to bring multiple lawsuits for a single instance of defamation. This rule balances the need to protect reputations by preventing excessive litigation, ensuring the law serves its purpose without encouraging undue lawsuits.
Anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes are legal protections designed to counter SLAPP lawsuits. These are lawsuits often filed against individuals or organizations for actions in connection with their right to free speech or petitioning the government, typically on matters of public concern. The intent behind a SLAPP suit is usually not to win on the merits but rather to intimidate or burden the defendant with legal costs, thereby chilling their engagement in protected activities.
Anti-SLAPP statutes aim to prevent this misuse of the legal system. They allow a defendant in a defamation case to file a motion at the early stages of litigation to dismiss the claim if it is determined to be a SLAPP.
What to Do If You Think You Have Been Defamed
If, after careful evaluation, you believe that you have a valid defamation claim and no applicable defenses preclude you from proceeding, there are several avenues you can pursue to address the harm caused by the defamation. These steps aim to rectify the damage to your reputation and seek appropriate remedies for the wrongs you have suffered.
Even if your situation does not constitute a valid defamation of character claim, there are still practical measures you can take to manage the content in question and mitigate its impact. These alternatives, while not formal legal remedies, can help control the damage and restore your reputation and, where appropriate, can be facilitated without the help of an attorney.
Preserve Evidence of Defamation
In cases where you suspect defamation, it is crucial to document and preserve all evidence. This evidence might be in various forms – online posts, articles, social media content, or any other medium where the defamatory statement is made. Given the transient nature of digital content, which can be altered or deleted, having a concrete record is essential.
If the defamation occurs online, ensure you capture the content and any associated details. This includes the account profile of the person who made the statement and the URL of the webpage where the statement appears.
While screenshots are a good start, they may not always be sufficient in a legal context. Using specialized digital preservation tools like Page Vault can offer a more robust and legally admissible record.
Also, record how you became aware of the defamatory content. Whether it was through a Google Alert, an email notification, or information from a third party, keeping a record of these notifications can be important.
Reach Out to the Author
In instances where the author of a defamatory post can be identified, direct negotiation is a potential course of action. This approach involves contacting the author and requesting that they voluntarily remove the offending content. If necessary, this request can be accompanied by the mention of potential legal action, especially if the host website allows for the removal of such content.
However, it is important to exercise caution with direct negotiation. Reaching out to the author has the potential to exacerbate the situation, particularly if not handled delicately. While direct negotiation can be an effective strategy, it should be approached with a clear understanding of the possible risks and consequences, preferably under the guidance of legal counsel.
Report the Defamation to the Online Platform Where it Was Posted
Most online platforms, including consumer review and social media sites, have Terms of Service (ToS) that all users agree to adhere to when creating content. These ToS guidelines can typically be found at the bottom of the platform’s homepage and vary from one platform to another.
It is important to note that a review or post does not necessarily have to be factually false to breach the ToS. There are various grounds under which opinion-based or truthful reviews could violate a platform’s rules.
If you suspect that a particular piece of content violates the platform’s ToS, you can flag it for the attention of the platform’s moderation team. This process usually involves submitting a report through a specific mechanism provided by the platform. Due to the high volume of reports these teams often handle, be prepared for a response time ranging from several days to weeks.
Having the support of an attorney with experience in these matters can be advantageous. A legal professional familiar with different platforms’ reporting processes and ToS can guide you through the procedure more effectively, potentially increasing the chances of a favorable outcome.
Legal Remedies to Address Defamation of Character
When defamatory statements cause harm to your reputation and other measures are insufficient, legal remedies available through hiring an attorney may be the best course of action.
Send a Cease & Desist Letter
A cease and desist letter is a direct and often effective approach to addressing defamation. This letter serves as a formal notice to the defamer, demanding they stop their unlawful behavior and remove any defamatory content. In many cases, the letter is enough to persuade the defamer to take down the offending material, as it underscores the potential for legal consequences.
One of the advantages of this strategy is its relative simplicity and cost-effectiveness compared to other legal actions. Cease and desist letters typically do not require extensive time or resources to issue. However, an effective cease and desist letter requires significant expertise. An expertly written cease and desist letter can carry more weight and be more persuasive, thereby increasing the likelihood of a favorable response.
Filing a Lawsuit For Defamation of Character
Filing a defamation lawsuit is a significant step for those who have suffered reputational harm. An experienced defamation attorney can guide you through the complexities of the legal system and help develop an effective strategy. Defamation lawyers can work to secure court orders to compel the removal of harmful content, identify anonymous defamers, and put an end to further attacks.
Filing a defamation lawsuit is a complex process that seeks to rectify the harm done and also serves as a deterrent against future defamatory actions.
What Damages Are Available For Defamation of Character?
In defamation cases, the victim or plaintiff must demonstrate that they suffered specific adverse consequences due to the defamatory statement to recover financial compensation. The range of damages that can be claimed is broad, reflecting the various ways in which defamation can impact a person’s life and livelihood.
Common types of harm for which a victim may seek compensation include:
- Loss of Money
- Decrease in Income
- Tarnished Reputation
Compensatory Damages (Also Called Actual Damages)
Compensatory damages, also known as actual damages, are intended to reimburse a plaintiff for the harm they suffered due to defamation. These damages are typically categorized into two subtypes: special damages and general damages, each addressing different aspects of the harm incurred.
Special damages are awarded to compensate for specific, quantifiable financial losses resulting from the defamation. This could include a reduction in income, foregone bonuses, lost clients, or additional incurred expenses. To claim special damages, the plaintiff must provide concrete evidence, such as financial documents, to demonstrate these actual losses. In some cases, documents might not suffice, and the testimony of an expert witness may be required to establish a direct link between the defamatory statement and the financial harm experienced.
General damages are awarded for more intangible harms, such as damage to reputation or emotional distress caused by the defamation. General damages are inherently challenging to quantify since putting a monetary value on emotional suffering or reputational harm is not straightforward. Courts acknowledge these difficulties, and as a result, proving general damages often involves detailed testimony from the plaintiff or expert witnesses.
Punitive damages in defamation cases are awarded in situations where the defendant’s actions were particularly malicious, egregious, or wanton. To be eligible for punitive damages, the plaintiff has to meet a higher standard of proof compared to compensatory damages. It must be demonstrated that the defendant acted either intentionally or with reckless disregard for the truth of the statement – a concept legally referred to as “actual malice.”
By requiring proof of actual malice, the law ensures that punitive damages are reserved for cases where the defamation was not just harmful but also carried out with a high degree of culpability.
Finding a Defamation Attorney to Assist You
Defamation law involves various nuanced factors that need careful consideration to determine the viability and potential success of your claim. Consulting with a skilled defamation lawsuit attorney is vital as they bring a depth of expertise in assessing the unique aspects of your case. They can help identify the strengths of your claim and prepare for any possible defenses that might be raised by the opposing party.
A defamation attorney’s guidance can be instrumental in formulating a strategy, navigating the legal process, and, ultimately, achieving a resolution that addresses the harm you have suffered.
How to Find a Defamation Attorney to Address Defamation of Character
If you suspect that you may have a valid defamation claim, it is essential to seek guidance from an attorney well-versed in this area of law. An experienced defamation attorney can help you understand the viability and strength of your claim by considering all relevant factors, such as the nature of the statement, the context in which it was made, and its impact on you.
Start by researching attorneys who specialize in defamation law. There are numerous state and national attorney databases such as:
- SuperLawyers.com, and
- Your state or local legal aid society.
You can also seek referrals from friends, colleagues, or other legal professionals.
For further reading, please see our comprehensive guides on finding a defamation attorney in Ohio, New York, and the United States.
How Much Do Defamation of Character Attorneys Typically Cost?
Determining the cost of hiring a defamation-of-character attorney is not straightforward and varies based on several factors. While it is challenging to provide a one-size-fits-all estimate, understanding the general pricing structure can help in setting expectations.
Many defamation attorneys bill their services on an hourly basis, especially for cases that involve litigation. Litigation tends to be the most resource-intensive service in terms of cost, time, and effort.
Attorneys often require a retainer fee upfront for litigation cases. This fee is a pre-payment that the lawyer draws from as they work on the case.
For example, at Minc Law, for litigation matters, our minimum retainer is typically $8,500. Not every firm is the same and fees can vary depending on the firm’s policies and the case’s complexity. Some cases may be resolved for roughly $15,000, with monthly costs running anywhere from $1,000 to $3,000. Others may see monthly costs in excess of $4,000 to $6,000 per month, with total trial costs alone reaching $30,000 to $60,000 or more.
To read further about total case costs, please see our comprehensive resource, ‘How Much Does a Defamation Lawsuit Cost?’
We Can Help Explore If You Have a Valid Defamation of Character Claim
It can be difficult to know where to turn and how to proceed if you are the target of defamation. At Minc Law, we can help. We have extensive experience navigating defamation laws across the U.S., assessing strengths and weaknesses of claims, exploring alternatives to litigation, and filing suit (if necessary).
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November 3, 2022
If you believe you may have a valid defamation claim, reach out to schedule your initial no-obligation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.