When someone publishes false statements about you or your business, the fallout can have devastating and sometimes permanent effects on your reputation. If this unfortunate situation has happened to you, you may be wondering how to file a libel lawsuit.
To successfully sue for libel, you must take the following steps:
- Determine that you have a valid libel claim;
- Identify the proper jurisdiction and court to file your libel lawsuit;
- Gather and preserve evidence of the libelous statements or content;
- Comply with all pre-suit filing requirements such as providing notice or requesting the defamer to mitigate and/or remove the libelous content;
- Consider alternative resolution tactics; and
- Draft, file, and serve the legal complaint on the defendant.
At Minc Law, we have filed hundreds of successful defamation lawsuits across 26 states and five countries. Since our firm is dedicated to combating internet defamation, most litigation matters that we handle involve libel claims. We are intimately familiar with the requirements for filing a libel lawsuit and tackling the many challenges that can arise throughout the case.
In this article, we explore the definition of libel and how it differs from other types of defamation. We then describe the evidence you will need to prove your defamation claim, and finally, the key steps in the litigation process.
What a Person Has to Prove to Succeed in a Libel Lawsuit
Before filing a libel lawsuit, it is critical to know the difference between various defamation types.
Defamation is a false statement that is communicated to a third party that causes damage to a third party’s reputation.
Slander and libel are the two main types of defamation, and it is important to know the difference between the two. Bringing the incorrect legal claim can lead to your case being dismissed or penalized before it even begins.
Below, we discuss the difference between libel and slander, along with the basic elements of proving a defamation claim.
What Qualifies as Libel?
Libel refers to a written or published false statement of fact which causes damage to another’s reputation, while slander is spoken.
The easiest way to remember the difference between libel and slander is that “slander” and “spoken” both begin with the letter S. Traditionally, the law distinguished between libel and slander because spoken defamation was considered to be more transitory and, therefore, had less of an impact on the victim.
Libel initially applied to statements physically written on paper—such as in a book (“libellus”) or newspaper. But today, it also extends to digital mediums like the internet, television, and even radio (depending upon the jurisdiction). Libel encompasses statements that are “published” to third parties-and due to advances in communication technology, most contemporary cases of defamatory speech fall into the category of libel.
Other terms used for libel include:
- Character assassination,
- Character defamation,
- Defamation of character,
- Famacide, and
- The tort of defamation.
Is Online Defamation Libel or Slander?
Defamation that occurs online is aptly referred to as online defamation or internet defamation. Online defamation usually takes place on social media, online review platforms, and other user-generated content platforms.
Since content posted online is preserved in a tangible medium and can be accessed by a large number of individuals, online defamation is typically considered libel.
If you are the target of slander and considering initiating a lawsuit against the defamer, we recommend reading our comprehensive resource ‘How to Sue For Slander‘.
How Can You Demonstrate That You Have Been the Victim of Libel?
In most states, to succeed in a claim for libel, 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.
False Statement of Fact “Of and Concerning” the Plaintiff
The first requirement for a statement to be considered defamation is that it contained a false statement of fact about the plaintiff.
To be considered false, the statement must be objectively untrue (i.e., not an opinion). Established 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. So an opinion can only be considered defamation if it can reasonably be inferred as fact.
The statement must also be interpreted by a reasonable person as referring to the plaintiff specifically.
Communicated to a Third Party
The false statement also needs to have been “published” to, read by, or otherwise communicated to a third party. In other words, if the speaker made the statement privately to the plaintiff, that statement would not qualify as an actionable libel claim.
If the libelous statement is popular, it may be republished and spread around online. Every time the statement is republished, it constitutes a new cause of action for defamation (which is why you should never share defamatory content online). Restat. 2d Torts § 578 cmt. B. Under Section 230 of the Communications Decency Act, publishers of the libelous content are generally liable for defamatory republications made by third parties, while distributors (ex. Bookstores, newsstands, and libraries) are typically only liable if they know (or have reason to know) the content is defamatory.
Minc Law Defamation Fact: The main exception to the republication rule is known as the single publication rule. The single publication rule exists to prohibit targets of defamation from perpetually initiating defamation lawsuits against a defendant for subsequent publications of the same defamatory content. However, material changes to the original defamatory content may give rise to an entirely new claim for defamation.
The Statement Was Made With at Least a Negligent Level of Intent
The perpetrator also must have made or published the false statement(s) negligently. In other words, they did not take the precautions a reasonable person would take before making the communication.
Public figures, however, have a higher burden of proof as the plaintiffs in defamation cases. They must prove that the perpetrator acted with actual malice or reckless disregard—in other words, they either knew the statement about the public figure was false or acted with reckless disregard as to whether the statement was true.
Caused Damage to the Plaintiff
Lastly, the libel must result in actual (or presumed) damage to the plaintiff’s reputation. The term “damage” here refers to any type of compensation for harm or loss caused by the defendant’s actions.
If the libelous statement is considered defamation per se (addressed below), the damage to a plaintiff’s reputation may be presumed. But if the claim does not fall into this category (or if you want to strengthen your defamation case as the plaintiff), you must prove the damages you suffered.
Damages in a libel lawsuit might be:
- Financial (e.g., job loss, lost revenue, fewer clients, etc.);
- Physical (e.g., high blood pressure);
- Mental/emotional (e.g., anxiety attacks, depression, etc.);
- The cost of mitigating reputational harm (e.g., PR fees, attorney fees, content removal services, etc.).
What is Libel Per Se?
Defamation per se (also referred to as libel per se or slander per se) refers to defamatory statements that are presumed to cause harm to the victim.
Although statements or content that qualify as libel per se are presumed to be inherently damaging, in most matters, it is still advisable to provide evidence of the harm suffered. And, to receive compensation, more than a nominal amount, for the harm you suffered, you will still need to prove the extent of the damages.
Most states in the U.S. consider the following types of statements to be defamation per se if they accuse the plaintiff of:
- Committing a punishable crime or a crime of moral turpitude,
- Having a loathsome disease,
- Engaging in sexual misconduct, or
- Acting improperly or unethically in their job, profession, or course of business.
What Are the Challenges of Proving a Libel Claim?
The challenges in proving a particular libel claim depend on the facts of the case. However, some common challenges can arise, including:
- Gathering and preserving evidence of the defamatory content or dissemination of the content, especially with internet defamation,
- Proving the defamatory statements are false, especially when the defamatory statement concerns a private encounter or interaction,
- Establishing the defendant published the false statement with the requisite degree of intent or fault (e.g., actual malice), and
- Proving the harm suffered or actual damages sustained.
Gathering & Preserving Evidence of the Defamatory Content
While gathering and preserving evidence of defamatory statements presents less of a challenge for claims sounding in libel, as opposed to slander, challenges can arise, especially in the context of internet defamation.
Some internet platforms, like Snapchat and Instagram Stories, automatically remove or limit the availability of content after a period of time has passed or prevent the same user from viewing the content more than once from a single account.
Even if the platform itself does not limit the availability of the post automatically, defamatory speech on the internet may be removed for a number of other reasons.
For example, if the defamatory statement breaches an online platform’s terms of service (such as a fake review or harassing social media post), it may be taken down for a ToS violation before you have a chance to preserve the content.
The perpetrator themselves may remove defamatory posts or reviews if they become concerned about the consequences of their actions or, if the content is published anonymously, that their identity will be revealed. This can happen suddenly – a post or review may be available for months and then disappear overnight. This is why it is important to preserve defamatory statements as soon as you see them.
Proving Falsity of the Defamatory Content
Under some circumstances, proving that the defamatory statements are objectively false can be difficult. This problem may arise in cases where the defamatory statement concerns a private encounter, such as a private conversation or intimate encounter between the plaintiff and defendant.
Unless the perpetrator has admitted they lied about the encounter to someone else, it can be difficult for the plaintiff to secure and present evidence – outside their own testimony – establishing that the statement(s) made are false. While the plaintiff’s testimony will likely be sufficient to allow the case to be decided at trial, the success of the case may turn on which party the jury decides to believe.
Establishing the requisite degree of fault for liability to attach can also present a difficulty, especially when the plaintiff is a public figure (or the issue is of public concern) and they must prove the statement was made with malice. Whether or not a defendant knew a statement was false when they published is often a fact uniquely within the knowledge of the defendant, who will be reluctant to admit they had that knowledge.
Documenting & Proving Damages
Documenting and proving damages is another common problem encountered by libel plaintiffs. In defamation claims, the plaintiff typically seeks to recover general, or noneconomic, damages for the harm to their reputation and emotional distress. Proving these subjective and somewhat unquantifiable harms is inherently difficult. As one New Jersey court acknowledged, evidence of injury to reputation is “elusive… inherently amorphous, and often defies exact measurement.”
Even when the harm to the reputation causes special – or economic damages – such as loss of profits, loss of revenue, and expenses incurred to mitigate the impact of the defamatory statements, establishing that such losses were caused by the defendant’s actions presents certain issues.
For example, a business plagued by fake reviews or defamatory statements may see a steep decline in its profits in the months after the defamatory statements were published. However, they may not have direct evidence showing, for example, that existing customers stopped coming to their business or did not hire them to provide services because of the defamatory statements.
Likewise, a plaintiff may have missed out on potential opportunities that they were not even aware of. Potential customers may see fake reviews and choose not to do business with the plaintiff, but they rarely ever reach out to tell the plaintiff to tell them it was the fake review that led them to make that decision.
In light of these difficulties, it is important to secure all available evidence to support and prove your claims.
Evidence You Need to Provide For Filing a Libel Lawsuit
Below, we discuss the types of proof you should gather if you plan to sue for libel.
What Are the Differences Between Direct & Circumstantial Evidence?
First, it is necessary to understand the different kinds of evidence presented in libel lawsuits. Libel claims can be proved through direct evidence, circumstantial evidence, or a combination of the two.
Direct evidence is evidence that provides direct proof of a fact without requiring the jury to make any inferences. For example, to prove that a statement was false in a libel case, the plaintiff may provide witness testimony stating that what the defendant said was not true.
Circumstantial evidence, on the other hand, requires the jury to draw inferences linking the facts to the conclusion.
While the term circumstantial evidence often has a negative connotation, it is important to remember that both types of evidence can be used to prove your case and you may need to rely on circumstantial evidence alone to support certain elements.
For instance, courts recognize that plaintiffs typically rely on circumstantial evidence and inference to prove actual malice, a necessity in cases involving public figure plaintiffs.
What Types of Testimony Are Useful in Building a Libel Case?
In libel cases, there are three core types of witness testimony that can be useful to bolster your case-including:
- Fact witness testimony,
- Character witness testimony, and
- Expert witness testimony.
Below, we cover each type of testimony that may be used to bolster a libel case in greater detail.
Fact Witness Testimony
A fact witness provides testimony from firsthand knowledge about the facts directly at issue in a case.
In the context of a libel claim, fact witness testimony can be useful to establish that the defendant’s statement is, in fact, false and that the defendant knew the statement was false when they made it.
Fact witness testimony can also be useful to establish the harm caused by the defendant’s false and defamatory statement. It is advisable to find witnesses that can testify as to what was published—and that the harmful statement was communicated to a third party.
Also, you can (and should) give fact witness testimony in your own libel case. Your testimony can help demonstrate that the statements about you were both false and harmful to your reputation.
Character Witness Testimony
A character witness gives testimony on behalf of another person’s positive (or negative) character attributes. While character witness testimony is more common in criminal cases, it has limited usage in civil cases like libel lawsuits.
In a libel lawsuit, the plaintiff might use a character witness to testify to the plaintiff’s good character and standing in the community. This testimony would add weight to the argument that the defendant’s statement impugning the plaintiff’s character was false, and therefore, defamatory. Moreover, it can help show the degree of reputational harm suffered by the plaintiff.
Expert Witness Testimony
An expert witness is a person with special education, training, or experience that makes them qualified to provide an opinion, analysis, or explanation to help the jury or judge understand the facts at issue in a legal proceeding.
Expert testimony can be helpful in a libel case to establish how false and defamatory statements have harmed or damaged the plaintiff. For example, if a defamatory statement caused a business to lose certain clients or accounts, a financial expert could provide testimony regarding how the loss of that client or account impacted the business’s overall revenue.
Or, a mental health professional can provide expert testimony about how the false and defamatory statements have caused the plaintiff psychological injury, how long that injury is expected to last, and the cost of any future treatment.
What Documentation Can You Provide as Evidence For a Libel Lawsuit?
Documentation, or documentary evidence, also plays a crucial role in supporting and proving a libel claim.
Broadly, “documentary evidence” is any evidence that can be reproduced on paper or that exists in a tangible form. Documentary evidence may include:
- Official documents like police reports,
- Photographs or videos, and
- Financial records.
Libel claims involve the publication of false and defamatory statements in a written or tangible form. Documentation is typically used to establish the content of the libelous statement itself, as well as when, where, and who published the statement(s). When the libel occurs online, this evidence often comes in the form of screenshots of the post or content.
Other types of documentation that can be used to prove a libel claim include evidence of:
- The defendant’s malicious intent in making the false and defamatory statements,
- Defamatory impact on reputation (like a decreased star rating on Google or decreased traffic to a webpage), or
- Damages (medical bills, lost wages, etc.).
If you are considering pursuing a libel claim, it is helpful to start gathering evidence as soon as the defamatory statements are published. This is particularly important when the defamatory statements are made online, as the perpetrator may remove the posts or statements before you can save screenshots of them.
Statute of Limitations For Your Libel Claim
If you have been the victim of libel, it is essential to act immediately. There is a limited window of time in which you can file a libel lawsuit; if you wait too long, you may lose the option to sue.
Below, we discuss the statute of limitations for libel lawsuits and how to determine which timeline applies to your case.
What is a Statute of Limitations?
The statute of limitations is the legal term for a time limit placed on when legal action can be taken after an offense. When it comes to defamation and libel cases, the clock starts ticking on the statute of limitations once the defamatory statement has been published or communicated to a third party.
Why is There a Statute of Limitations on Libel?
The statute of limitations was established to prevent legal plaintiffs from suing defendants many years after the unlawful event happened. This legal time limit helps ensure that relevant evidence and witnesses are current. It also gives the defendant proper notice of the impending claim so that they have time to prepare.
When it comes to libel cases—especially ones involving libelous content on the internet—it is even more crucial to act quickly. Servers are erased, social media profiles are deactivated, and content is taken down overnight. If you delay too long in filing your libel claim, you run the risk of losing access to critical evidence to win your case.
How Can You Determine the Statute of Limitations For Your Libel Claim?
Once a libelous statement is communicated or published to a third party, you have a limited opportunity to initiate a defamation lawsuit. If the statute of limitations runs out before you file your claim, a judge is extremely likely to dismiss your case before it can even get started (or proceed with penalties).
In defamation lawsuits, the general rule of thumb is that the statute of limitations clock begins ticking once the perpetrator publishes or otherwise communicates the defamatory statement. The one exception is the “discovery rule,” in which the statute of limitations begins only once the victim discovers the defamatory statement made about them.
Minc Law Defamation Law Tip: Every state has its own statute of limitations for defamation claims—and there are usually several factors at play. Most states require plaintiffs to file a defamation claim within one year of the publication of the false statement, but that is not always the case. For more information about each state’s statute of limitations, see our article: What is the Statute of Limitations for My Defamation Claim? or, check out this video on the topic below.
Video: What is the Statute of Limitations for Defamation in the U.S.?
How the Single Publication Doctrine Can Affect Your Libel Claim
When determining the applicable defamation statute of limitations for a claim, plaintiffs must take into account the single publication doctrine.
The single publication doctrine is an exception to the general rule of republication. It holds that a plaintiff in a libel lawsuit only has one claim for each mass distribution of a defamatory publication—not for every single copy that ran after the original publication.
This rule prevents plaintiffs from bringing multiple libel claims for a single defamatory publication or post.
Key Steps in the Process of a Libel Lawsuit
First, it is crucial to keep in mind that filing a libel lawsuit should never solely be done so for monetary compensation.
Of course, you may have concerns about the lawsuit’s cost or be interested in recovering damages to mitigate the financial loss you suffered. But the main reason to file a libel lawsuit is that it will end the pain, harassment, and harm caused by the libelous content.
Below, we cover the six steps typically involved in filing a libel lawsuit.
What Are the Basic Requirements For a Libel Lawsuit?
To prepare to file a libel lawsuit, you will need to:
- Determine that you have a valid libel claim,
- Identify the best court to file the libel lawsuit,
- Gather and preserve the evidence,
- Comply with all pre-suit filing requirements,
- Consider alternative resolution tactics, and
- Draft, file, and serve the legal complaint.
1. Determine That You Have a Valid Libel Claim
First, ensure you have all the necessary elements for bringing a libel lawsuit.
Has the perpetrator made an unprivileged, false statement of fact about you to a third party with at least a negligent level of intent? And if so, has the statement caused harm to your reputation or that of your business? If so, your libel claim is likely a valid one.
2. Identify the Best Court to File Your Libel Lawsuit
Next, you will need to determine where to file your suit.
This step seems deceptively simple. But which court is the right one at which to file your claim? Should your case be filed at the state or federal level?
The court with proper jurisdiction over your lawsuit will depend on several factors, including:
- Where you live,
- Where the defendant lives,
- Where your business operates,
- Where the defendant’s business operates,
- Where your customers live (if applicable),
- Where you experienced damages due to the libel, and
- How much money you seek to recover.
In some cases, you may only have one option when choosing a court to file your lawsuit. In others, you may have a few options based on where you and the defendant live or where you have experienced damages.
Having options lets you choose which jurisdiction is the most beneficial for you. State courts are generally more plaintiff-friendly than federal courts, for example-and some states have more advantageous libel laws on the books.
3. Gather & Preserve the Evidence
It is critical to act quickly to preserve evidence for your defamation claim. Waiting too long risks crucial evidence being lost or deleted—and it can even delay your court date.
Because online libel is preserved in a tangible medium, plaintiffs may have an advantage (over slanderous statements) in gathering and preserving evidence of the defamatory statement(s). However, for the reasons discussed above, you should not assume that the defamatory statement published online will be available indefinitely.
There are proactive steps you can take to preserve defamatory content online, such as enlisting the help of the built-in tools in your web browser or computer operating system by:
- Taking screenshots of the defamatory material,
- Backing up harassing emails to a second email account,
- Printing out documents, and
- Saving web pages (for instance, in Google Chrome, just click CTRL+S on Windows or CMD+S on Mac to save a timestamped HTML file of the webpage to your hard drive).
You can also use paid, professional-grade software like Visualping or Page Vault to save documentary evidence of your harassment.
For the material that you do not have access to-such as if it is stored on another person’s private computer-your attorney may need to help you send out preservation notices to save that data.
4. Comply With All Pre-Suit Filing Requirements
In some states, you are required to meet certain conditions before filing your claim in court. If you do not meet these requirements appropriately, you risk losing the ability to recover certain damages -or your case being thrown out altogether.
These pre-suit filing requirements may include giving notice to the defendant ahead of time (as practiced in Michigan and Florida). In Michigan, you must make a retraction demand in order to entitle you to seek and recover punitive damages at trial. Similarly, in Texas, plaintiffs in defamation cases must first demand a retraction from the defendant before proceeding with a lawsuit.
Each of these pre-suit filing requirements is aimed at giving the defendant a chance to resolve the situation – or limit the damages that can be assessed against them – before they are taken to court.
5. Consider Alternative Dispute or Pre-Suit Resolution Tactics
Filing a lawsuit is extremely expensive and time-consuming for all parties. Litigation is also unpredictable for even the most prepared parties. That is why it may make sense in your situation to pursue an alternative resolution, or alternate means of remedying the problem, such as:
6. Draft, File, & Serve the Legal Complaint to the Defamer
At this point, you are ready to prepare the legal complaint that starts the libel lawsuit.
A legal complaint is the civil version of a criminal charge or pleading. It is a document that lays out the circumstances and important information of the case and makes the defendant aware of why they are being sued. Most complaints contain the following major components:
- Factual allegations,
- The parties to the lawsuit,
- Jurisdiction and venue,
- Claims for relief,
- Relief requested, and
- Type of trial requested.
Make sure your complaint is in line with all legal requirements for pleading a libel claim in your case’s jurisdiction. An experienced defamation attorney can ensure your complaint is drafted in compliance with the relevant rules and prevent the dismissal of your claim – or, in the case of some jurisdictions, penalties or fees levied against you for bringing an improper action.
What Can a Defamation Attorney Do For Your Libel Lawsuit?
If you have been the victim of libel, it can be difficult to know what to do or where to turn. An attorney experienced in defamation matters can give you objective legal advice and help you avoid numerous critical missteps, such as:
- Filing your claim in the wrong legal jurisdiction;
- Having your matter dismissed or penalized by the judge;
- Receiving less monetary and equitable relief than you asked for; and
- Drawing more attention to your case than necessary (this social phenomenon is known as the Streisand Effect).
Since each libel lawsuit varies based on jurisdiction, it is important to reach out to a defamation lawsuit attorney with experience in your state (or the state where the lawsuit will be filed) for legal help.
Minc Law Can Help You Explore if You Have a Valid Libel Claim & File Suit
Libel can have serious, disruptive consequences for individuals and businesses, and it is not always a clear-cut decision to file suit. Additionally, it can be overwhelming and stressful trying to determine what steps to take to initiate a libel claim against an online perpetrator.
At Minc Law, we have extensive experience working with targets of defamation to determine if they have a valid claim, how to best resolve their internet issue, and advocating for effective alternative resolution tactics (when applicable). We know what it takes to resolve internet defamation matters efficiently and without drawing unwanted attention to them.
“Dan Powell was exceptional. Extremely knowledgeable about the law and insightful as to the reality and expected outcome of my case. I would strongly encourage and recommend Minc and Daniel Powell.
Oct 30, 2019
Reach out today to schedule your no-obligation defamation consultation by calling us at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.