Filing a defamation lawsuit can seem like a complicated and daunting task, especially if online defamation is involved. But do not worry! In this comprehensive article, we lay out in simple terms what you need to know about how to file a defamation lawsuit by taking you step-by-step through the process.
At Minc Law, we have filed hundreds of defamation lawsuits across the United States and globe, so we know a thing or two about filing libel and slander cases.
We recommend taking the following steps when filing a defamation lawsuit:
- Step One: Assess whether you have a valid claim for libel or slander,
- Step Two: Consider what defenses you may face to your lawsuit and how you may be able to overcome them,
- Step Three: Decide on the best court to file your lawsuit,
- Step Four: Draft your legal complaint,
- Step Five: Comply with all pre-suit notification and filing requirements, and
- Step Six: Serve your lawsuit on the defendant after filing it.
The decision to file a civil lawsuit should not be taken lightly. Every defamation case is unique. Numerous factors must be considered when assessing a libel or slander claim. Defamation law is highly nuanced and state laws can vary considerably. It is not like other types of personal injury lawsuits and claims.
Furthermore, pursuing litigation is not always the best option. Filing an ill-advised defamation lawsuit can lead to disastrous consequences, such as:
- Drawing more unwanted attention to the defamatory content you want removed (known as the ‘Streisand Effect’);
- Filing your defamation lawsuit in the incorrect legal jurisdiction;
- Having your case penalized or thrown out altogether;
- Obtaining inadequate monetary and equitable relief;
- Not maximizing relief via alternative claims.
It is important to consult with an experienced online defamation attorney who has experience with defamation lawsuits in your state – or the state where the lawsuit may be filed – who can properly assess and file your case.
- Determine Whether You Have a Valid Defamation Claim
- Common Defenses to Internet Defamation Lawsuits
- Where to File Your Defamation Claim
- Comply With All Internet Defamation Pre-Suit Requirements Before Filing
- How to Draft a Legal Complaint For a Libel or Slander Claim
- Work With Experienced Internet Attorneys to File a Defamation Lawsuit
Determine Whether You Have a Valid Defamation Claim
First and foremost, the most important question that needs to be answered before filing a defamation case is whether you have a valid defamation claim. There is no use of taking any additional steps to file a defamation lawsuit if you do not have a valid claim.
Defamation is generally broken down into two categories: libel and slander. A libelous statement is one that is written. Slander refers to spoken defamation.
Businesses, no different than individuals, can also sue for defamation. Businesses also have the benefit of making more specialized defamation claims for damages and relief, referred to as trade libel.
The legal elements that constitute a claim for defamation vary by state. Generally, a plaintiff must prove the following four elements to succeed in a libel or slander claim:
- There is a false statement of fact made about the plaintiff,
- It was communicated to a third party,
- It was made with at least a negligent level of intent, and
- It caused damage to the plaintiff’s reputation.
To have a viable libel or slander claim, it is important to understand and make sure that you have evidence to meet each one of the above, requisite elements. I break down each of these four elements below in more detail.
A False Statement of Fact about the Plaintiff
The first requirement is fairly straightforward. To have an actionable defamation claim, there must be a false statement that was made about you or your business.
A false statement is one that is objectively untrue and cannot be substantiated. Additionally, a false statement must actually identify the plaintiff or be reasonably understood to refer to the plaintiff.
Communicated to a Third Party
For a claim to be viable, a false statement must be communicated or published to a third party. Generally, statements published on social media, in online search results, and other publicly available online forums are presumed to be communicated to and read by third parties.
However, when libel is communicated in private messages, websites, texts, emails, or other direct means of communication that are not available publicly, it may become necessary for a plaintiff to provide more definitive evidence that an untrue statement was actually received and read by another person.
False statements that are only heard or read by the plaintiff and publisher will not give rise to an actionable defamation claim.
Fault Amounting to At Least Negligence
Generally, a plaintiff must prove that the defendant communicated an untrue statement with at least a negligent level of intent. This means that they were careless when they made the statement and did not exercise reasonable prudence an ordinary person would exercise in similar circumstances before communicating something that may not be true.
Negligence is the standard that applies in defamation cases that involve private figures and issues. When defamation lawsuits involve a public figure, public official, or issue of public concern, plaintiffs must prove that a defendant acted with actual malice or reckless disregard for the truth when communicating the slander.
These two different standards that defamation plaintiffs must meet were established in the historic defamation case of New York Times v.Sullivan, 376 U.S. 254 (1964).
- Public Official – people in government or other similar positions or jobs that involve government or societal affairs of public interest.
- Public Figure – generally, people who are considered famous, or who in certain limited situations have voluntarily or involuntarily injected themselves into a public issue or controversy.
- Issues of Public Concern – includes matters of legitimate news and public interest, political issues, topics of healthy debate in a community, and other major events.
A defendant will be found to have made defamatory statements with actual malice when they make it with knowledge of its falsity, or with ill will and spite towards the plaintiff.
This higher threshold is seen as a safeguard for free speech rights. As a policy, we treat public figures and public issues are in society’s best interest to be able to discuss in a more uninhibited way, without fear of censorship or legal backlash.
Damage to the Plaintiff’s Reputation
Lastly, a plaintiff must prove that their reputation has been damaged as a result of the defamation. Damage to a person’s reputation can range from physical and mental symptoms distress, specific economic losses directly caused by the defamation (lost income or remediation expenses), and general harm to a person’s reputation more broadly in the community.
The burden of proof for this element depends on whether the statement is considered defamation per se or defamation per quod.
Defamation Per Se
Defamation per se, also known as libel per se or slander per se, is a legal term that classifies libel or slander as being so inherently harmful and bad, that it is by law presumed to have caused mental distress and reputational damage to the plaintiff without the need for any evidence.
Statements considered defamatory per se must be harmful on their face, without the need for any extrinsic facts to show or understand why the statement is harmful.
In most states, a statement must fall within one of the following for categories to considered to be defamatory per se:
- Statements charging the plaintiff with having committed a punishable crime or a crime of moral turpitude;
- Statements imputing the plaintiff suffers from a loathsome disease such as a sexually transmitted disease or leprosy;
- Statements imputing the plaintiff (typically a female plaintiff) has engaged in sexual misconduct and is unchaste;
- Statements imputing the plaintiff has acted improperly or unethically in the course of their trade, profession, business, or occupation.
Even though “no evidence” is required to meet the last element if a statement is defamatory per se, this does not mean having no evidence of harm makes for a good libel claim.
Ultimately, plaintiffs who want to succeed and secure larger damage awards must be prepared to offer evidence, testimony, and documents proving they were actually harmed.
Defamation Per Quod
When statements are not defamatory per se, they typically are classified as defamatory per quod. Statements that are defamatory per quod require a higher evidentiary burden for plaintiffs.
In most states, when statements are classified as being defamatory per quod plaintiffs are required to:
- Provide extrinsic evidence and facts to prove that a statement is false and defamatory; and
- Provide evidence of special damages.
Per quod claims usually apply when a statement is innocent on its face but intrinsic facts make the statement defamatory, or if it does not fall into a per se category. An example of per quod defamation would be a claim that, during a party, a plaintiff was seen casually having a single drink with friends.
On its face, this is a fairly innocuous statement. However, if the plaintiff is a recovering alcoholic (an extrinsic fact) this could be understood as being defamatory and constitute per quod defamation.
If a statement is classified as defamatory quod, plaintiffs also have to prove something called “special damages.” This means that a plaintiff must be able to provide evidence of specific monetary damage that is a direct result of the defamation.
For example, if a plaintiff could show the specific amount of money they lost from losing a job, specific customers, or other contracts because people heard the defamation, this would qualify as special damages.
Common Defenses to Internet Defamation Lawsuits
If you have gone through the analysis above in the last section and believe you have a valid libel or slander claim, it is important to then analyze whether any defenses might be a bar to your libel lawsuit.
Unfortunately for plaintiffs, defamation is a defense-friendly claim. There are dozens of different defamation defenses and privileges that defendants can use to try and avoid being held accountable for making false statements.
This is by design and because our country loves free speech and the First Amendment. Therefore, even if you have a valid claim, if one of these defenses applies, it does not matter. Your lawsuit will not be successful.
Other risks are present in defamation cases that make libel and slander lawsuits not worth pursuing. Plaintiffs need to consider these factors carefully when filing a libel case.
Below, we go over some of the most common defenses and other factors you should always assess before filing. If any of these apply either you need to think of a way to get around the defense, rethink filing your defamation claim, or consider pursuing other options to get relief.
The Defense of Opinion
If a statement or publication is merely inflated hyperbole or rhetoric and cannot be objectively verified, then it will likely give rise to the defense of opinion.
A statement that is an opinion does not qualify as a false assertion of fact, which is a requirement for a defamation claim.
Since opinion statements do not constitute defamation, opinion is an important defense that must be considered by plaintiffs before filing their legal claim.
The Defense of Truth & Substantial Truth
While the truth may sometimes be inconvenient and messy, all defamation plaintiffs must face the facts if they wish to succeed on a libel claim. When statements are deemed true or substantially true, this will act as a complete defense to a defamation claim.
Whether a statement is considered legally true depends on if the statement may factually be proved true. This also extends to statements and publications which are substantially true – also known as the substantial truth doctrine.
The substantial truth doctrine holds that as long as the “gist” or “sting” of a statement is felt (and it is true), then minor inaccuracies and falsities will not render a statement as a whole false.
Absolute & Qualified Privileges
The defense of privilege refers to a person’s legal right to do or say something without fear of legal liability or repercussions. In the context of defamation, this extends to certain statements, which are allowed to further debate, democracy, and policy.
There are numerous types of privilege, which we will touch on below.
The Defense of Absolute Privilege
Absolute privilege refers to an all-encompassing right to publish or communicate a certain type of statement, at a certain time, and to a certain audience. It may be codified by statute, and is often used in legislative and judicial proceedings.
Absolute privilege is considered all-encompassing because it even extends to persons who communicate and publish statements with actual malice. Our legal system and society have deemed that there are certain types of statements, albeit potentially harmful, that are absolutely necessary for the advancement of legal, social, economic, political, and financial policy – so persons communicating such statements should not be punished.
The availability of absolute privileges vary by state. However, generally, statements made during judicial proceedings, official government proceedings, and executive actions, are protected as absolutely privileged, even when they are completely false and defamatory.
Defense of Qualified Privilege
Qualified privilege, also known as a common interest privilege, generally applies when a person has a legal, social, or moral duty to convey a statement or publication to a specific audience, even if they are later found to be false. And – that audience has a reciprocal interest in hearing such statements.
State laws vary considerably about when qualified privileges apply. However, in many states, the following types of circumstances protect statements as being qualifiedly privileged:
- Professors and employers writing reference letters for former students and employees,
- Persons presenting important information and facts at public meetings and local government forums.
- Communications made to police about their investigations of a crime.
- Communications made by daycare administrators to state agencies concerning suspected child abuse.
- Reports of judicial proceedings.
- Statements made by fraternal and social organizations and their members when discussing club business and disciplinary matters.
- Workplace defamation where a former employer is giving a bad reference, or a co-worker reporting bad behavior to their employer about another employee.
Qualified privileges are not as stringent of a bar to defamation claims as absolute privileges. If a qualified privilege applies, this means that a plaintiff will need to show that the defendant acted with actual malice or reckless disregard for the truth when they made the defamatory statement.
As discussed earlier, this is a high bar to satisfy. If the level of fault is merely negligent, then the defamation claim will be dismissed.
Fair Report Privilege
Fair report privilege extends to persons, news organizations, and other media who republish a defamatory statement or excerpt that came from an accurate and complete report of a government, judicial, legislative, or other administrative proceeding. In these situations, publishers are granted a qualified privilege.
Unless the publisher acted with actual malice and intent to harm a specific party, they will be immune from liability from publishing defamatory statements in such reports.
As a society, we believe it is in our best interest to trust official reports and materials issued by government and administrative bodies.
Think about how dangerous it would be to punish media outlets for relying on reports published by the government on government issues. Therefore, we do not hold media and news organizations liable in these situations.
Statute of Limitations Defense & The Single Publication Rule
A statute of limitations is a time limiting mechanism for a legal action, meaning it provides a time framework for when a plaintiff must commence and bring their lawsuit.
In U.S. defamation and libel law, states vary considerably as to when the deadline is to file a libel or slander lawsuit. About half of U.S. states require that a defamation claim be filed within 1-year of when it was made. Others allow for a period of two or three years to file a claim.
Additionally, some states have different filing deadlines for libel and slander claims. So it is extremely important to seek legal advice to determine what laws apply in your state or where you are looking to file a lawsuit.
Further, plaintiffs must take into account the single publication doctrine when analyzing their statute of limitations. The single publication is an exception to the general rule of republication, and holds that a plaintiff in a libel lawsuit will only have one claim for each mass distribution of a defamatory publication, and not a claim for every single copy or broadcast that ran after the original publication. This limits internet defamation and other libel claims to the date the original publication was made.
What is the Streisand Effect & How Can I Avoid It?
An important risk that defamation plaintiffs need to consider at the outset of a lawsuit is the “Streisand Effect.” The Streisand Effect is a term used to describe what happens when someone attempts to hide, remove, or censor information. However, instead of successfully suppressing the media, the person’s actions lead to the unintended consequence of furthering the publication and dissemination of the very information they want to go away.
This phenomenon is named after a 2003 incident where celebrity singer Barbra Streisand sought to suppress aerial photographs of her Malibu home. She sued photographer Kenneth Adelman and the photo-sharing site ‘Pictopia.com’ for violation of privacy. Prior to the lawsuit, the actual photos of Streisand’s Malibu had only actually been viewed six times.
The lawsuit wound up turning national media attention to the litigation and wound up accomplishing the opposite of what she was trying to achieve. The Streisand Effect has since manifested itself in countless other instances since.
How You Can Avoid the Streisand Effect
In the age of the internet, plaintiffs must assess the risk of the Streisand Effect or other increased public exposure from the filing of a defamation lawsuit.
Below are some quick tips we generally give clients to minimize the risk of this happening:
- Communications and claims need to have merit and properly address the other sides defenses,
- Intimidation and threats can ultimately lead down an unfavorable result if they are too aggressive,
- Aggressive representation is allowed, however, you should keep it professional and classy,
- Be careful what you file and send to opposing parties, there is always potential it will be posted online publicly, and
- Consider if there is public evidence that can be used against your client or thrown in your face on rebuttal.
- Consider if your client is a public figure, public issue, or private individual/matter, as the likelihood for attention increases with a person’s stature.
Threatening to sue people for truthful statements, opinions, or other conduct that is legally permissible can sometimes just make them angry, defensive, and can wind up bringing more attention to the situation.
Be very careful when employing aggressive legal tactics, like cease and desist letters, and make sure that you do so in a professional manner. The more merit your lawsuit and claims have, the less likely the Streisand Effect will occur.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act is an often relied on defense for internet defamation defendants. It is a piece of legislation granting near immunity to website and Internet Service Providers (“ISP’s) in cases where defamatory and libelous content is posted to their platform.
Specifically, Section 230 reads:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
Just as telephone companies are not liable for the criminal acts discussed across their phone lines, ISPs and websites who have third-party content and materials posted to it, are also not liable for claims related to content produced by other people.
Therefore, when commencing an internet defamation lawsuit over content on a website published by users, generally it is not a good idea to sue the website, which is just a host. They are immune and your claim will fail. For those wondering, “Can I sue Google?”, you now have your answer – generally, no.
There are several exceptions to the CDA, however, they are pretty narrow. Some of these include copyright infringement, when the ISP materially alters the content, criminal law violations, and a few others.
Going after the individual and malicious libeler/poster is best practice when bringing an internet defamation lawsuit.
Anti-SLAPP Laws: Combating Frivolous Suits
Short for “Strategic Lawsuits Against Public Participation,” SLAPP suits are lawsuits that are intended to intimidate, censor, or silence an opposing party by burdening them with potentially costly legal defense costs – in hopes they end up abandoning their opposition and criticism.
When filing a defamation lawsuit, it is vitally important to look to a state’s respective Anti-SLAPP legislation and discuss any potential Anti-SLAPP risks with your client. If you lose a claim in a state where an Anti-Slapp legislation applies you may be on the hook for paying the opposing party’s legal fees.
Two examples of Anti-SLAPP legislation include:
- New York: New York’s Civil Rights Law §76-a – New York’s Civil Rights law is designed to protect parties against SLAPP suits which are brought by public applicants.
- California: Cal. Civ. Proc. Code § 425.16 – California defendants may file a special motion to strike, “Anti-Slapp motion,” if they believe they are a victim of a SLAPP suit. To succeed on the merits, a Court must sequentially find; (1) Petition/Free Speech – the defendant acted “in furtherance of their right of petition or free speech under the U.S. or California Constitution in connection with a public issue, and (2) Plaintiff Probability of Success – if the plaintiff fails to show a probability he or she will prevail in their defamation claim, then it will be dismissed.
Anti-SLAPP laws are an extremely powerful defense, so it is important to anticipate whether the opposing party might raise it.
If the state a defamation lawsuit is being filed in has an Anti-SLAPP statute, plaintiffs should generally assume they are going to face this as a defense every time. Therefore, plaintiffs should carefully consider the ramifications of bringing a case if it is in a jurisdiction with an Anti-SLAPP statute.
Where to File Your Defamation Claim
For the third step to every defamation lawsuit, plaintiffs should determine where to file their defamation lawsuit. This includes the state(s) or court(s) they should file their lawsuit in. Generally, you can choose between filing your lawsuit in courts where:
- You live,
- The defendant lives,
- Your business operates,
- Your customers live (assuming they have read it), or
- Where you have experienced loss or damage as a result of the defamation.
Before choosing one jurisdiction over another, it is important to compile a list of states where you can potentially file the lawsuit and are options. Once you have this list ready, there are then a variety of factors to consider before deciding on the specific state where it is best to file to maximize your lawsuit’s chances of success.
I list and explain these factors below, they include:
Does a State Have More Favorable Laws Available For Your Case?
For example, states that have Anti-SLAPP laws or statutes of limitations that potentially prohibit your claims should be avoided.
On the other hand, states that have more favorable laws that allow you to avoid common defamation defense should be targeted to bring claims.
Does the Case Involve Anonymous Defamation?
Is the defendant’s identity known or unknown? If you do not know who the defendant in question is, then you will need to thoroughly consider where the best place is to file your lawsuit for purposes of discovery and relief. It needs to be sound.
Generally, in these circumstances, you will aim for the location where you live or do business first (for convenience), then the states where you know you have been harmed, and finally in the location where a suspected defendant might be located.
Where is it Most Convenient to Litigate the Case?
Typically, the most convenient and advantageous forums for plaintiffs to litigate in is their home forum or state (where they reside), or where their business is located. This generally will require fewer costs and time to travel to another location for hearings, depositions, or trial.
However, this must be weighed against other factors and may not be an option depending on your states jurisdictional rules.
Does the State’s Law Allow For Personal Jurisdiction?
Just because you want to litigate in a particular forum does not mean you will legally be able to do that. You can generally always file a lawsuit where a defendant is located and have proper jurisdiction.
However, when considering locations, it is imperative to determine whether you actually have enough of a legal basis and evidence to have personal jurisdiction over the defendant to litigate a claim in a particular state court or not.
When doing this, look at whether the defendant has any minimum contacts with the state in question and/or whether the defendant purposefully directed the defamation in a way that assured the plaintiff would be harmed and read in that forum state.
Once you have selected where you want to file your lawsuit, the next step is to comply with all internet defamation pre-suit requirements and then draft your complaint. We review different aspects of how to do that properly in the next two sections.
Since defamation legal definition and elements of defamation may vary by state, it is important to consult an experienced defamation attorney to understand your state’s respective defamation laws and elements.
Comply With All Internet Defamation Pre-Suit Requirements Before Filing
Before filing a defamation of character lawsuit it is essential to check your state laws to see if any specific pre-suit notice requirements must be followed.
Some states, such as Florida, Texas, and dozens of others have requirements that a party must give notice or give the author of a defamatory piece of content a chance to remediate or retract the publication before proceeding.
If you miss this requirement, you can potentially have your case dismissed, or in other cases be unable to collect certain defamation damages if you fail to follow these rules. I give three prime examples below.
Florida Pre-Suit Defamation Lawsuit Requirement
As one example, Florida Statute Section 770.01 requires, as a prerequisite to a defamation suit, in “any civil action… for publication or broadcast, in a newspaper, periodical, or other medium…” is the service of a written notice upon the defendant specifying the article or broad case and the statements alleged to be dismissed.
Failure to comply with Florida’s requisite notice statute may result in a mandated dismissal for attorneys and their clients. Furthermore, the notice must be served at least five days to the institution of a legal action. Notably, this statute does not apply to non-media defendants. And, when sending notice, it must be sent in “the best possible” way.
A good faith publication of the material, together with a correction, apology, or retraction, which is published within 10 days of receipt of the required notice, limits the plaintiff’s recovery to “actual damage,” which simply refers to damages that have actually occurred.
Texas Defamation Mitigation Act
The Texas Defamation Mitigation provides for detailed “correction, retraction or clarification” procedures of defamatory and libelous content, with specific deadlines, for both publishers and potential plaintiffs.
Specifically, under the Texas Defamation Mitigation Act, “A person cannot maintain an action for relief, however, characterized, for damages for harm to personal reputation caused by the false content of a publication without making a timely and sufficient request for correction, clarification or retraction from the defendant.”
It is important to emphasize that the request must be both timely AND sufficient.
Furthermore, the Act provides for abatement of an action where a plaintiff has not requested a correction pursuant to the Act. The act also provides that exemplary damages (also known as punitive damages), may not be recovered where there was no request for a correction within 90 days after the plaintiff receives knowledge of the publication.
Finally, exemplary damages may not be recovered if the plaintiff fails to timely provide evidence of falsity upon the publisher’s request pursuant to the Act, or if the publisher makes a correction in accordance with the terms of the Act, unless the publication was made with actual malice.
Michigan’s Notice Statute For Internet Defamation Lawsuits
Under Michigan’s notice statute, “A plaintiff must have made reasonable efforts to provide the anonymous commenter with reasonable notice that he or she is the subject of a subpoena or motion seeking disclosure of the commenter’s identity.”
However, that is not all… the statute continues, “the plaintiff’s claims must be evaluated by the court so that a determination is made as to whether the claims are sufficient to survive a motion for summary disposition under MCR 2.116(C)(8).” Ghanam v. Does, 845 N.W.2d 128, 141 (2014).
Note that summary disposition may occur when a party fails to state a claim, or there is no genuine issue of material fact.
In Michigan libel lawsuits, plaintiffs cannot recover exemplary (punitive) damages unless a retraction is first requested, and a publication of a retraction or correction will be enough to constitute evidence of good faith – and used in court to mitigate exemplary or punitive damages. MCLA 600.2911 and MSA 27A.2911.
Regardless of whether a notice is required or not, notice and a request for a retraction, and the response or lack thereof is evidence of intent. And, even if there is not a correction in some states, a formal retraction request and response can limit damages.
You can read about the competing opinions on whether this statute is a positive step in the right direction for identifying anonymous persons online, or a setback for anonymous free speech, in our comprehensive guide to Michigan defamation law.
How to Draft a Legal Complaint For a Libel or Slander Claim
Should you determine that filing a defamation lawsuit is right for you and your defamation issue, and checked all the boxes to make sure that you have a valid defamation claim and followed all pre-suit notice requirements, it is critical to draft an effective legal complaint to best maximize your relief and recovery.
A complaint is a formal legal document and the first action taken to initiate a lawsuit. It lays out the legal claims, facts, and arguments that a plaintiff believes are sufficient to support his/her claim against a defendant(s), along with a request for relief and damages (“prayer for relief”).
Defamation law is highly nuanced, rapidly evolving, and filled with countless twists and turns, so it is essential to take great care when drafting a defamation complaint and stay mindful of key drafting considerations.
Below is the list of the fundamentals of a complaint that we are going to walk through in more detail:
- Jurisdiction and venue (previously discussed above);
- Factual allegations;
- Claims for relief;
- Relief requested (money damages and equitable relief);
- Request for a jury.
Parties to a Defamation Lawsuit
The names of the parties in question are extremely important when filing a defamation lawsuit. Here are some important considerations when deciding who to name:
- Who is the allegedly defamatory and libelous content about?
- Are you suing on behalf of you, your business, or both?
- Are you naming co-defendants, co-conspirators, or websites as defendants?
- Is the defendant anonymous?
Generally, when dealing with situations where you do not know the identity of a defendant or are not 100% sure and need evidence to confirm, its best practice to proceed with a John Doe action.
A John Doe lawsuit refers to a case filed by a plaintiff against an unknown (anonymous) defendant. John Doe lawsuits enable plaintiffs to file their case within the requisite statute of limitations and conduct discovery to obtain data points to identify an anonymous perpetrator.
When filing a John Doe action, the best practice is to name the defendant as “John Doe,” “Jane Doe,” or use the alias or username (or name of the website if authored by the defendant) the person used to publish the defamation online as their party name.
After identifying the anonymous perpetrator, a plaintiff can then amend their complaint and replace “John Doe” with the defendant’s name.
Factual Allegations: Pleading Less is Best!
Generally, it is best practice to plead only what is necessary to validly assert a claim. This helps avoid the Streisand Effect and decreases the chances of news and media coverage. It also keeps factual details that are more private, or controversial in nature, confidential and out of the public domain.
Plaintiffs should be careful to consider how detailed of a description of the alleged defamatory statement they want to include and whether they want to attach copies (exhibits) of the defamatory content. They will also need to examine whether they need to include the exact date, location, and how the defamation was published. This requirement varies by state defamation law, and sometimes depends on whether you have a claim for libel or slander in some states.
In some states, complaints are deemed sufficiently pled as long as they allege the general substance of the alleged defamatory statement. However, in states like New York and California, plaintiffs must “set forth the particular words allegedly constituting defamation and it must also allege the time when, place where, and the manner in which the false statement was made, and specify to whom it was made.” Epifani v. Johnson, 65 A.D.3d 224, 233, 882 N.Y.S.2d 234 (2d Dept.2009).
This generally means you have to quote things precisely and attach copies.
There are exceptions when the general rule of pleading less does not apply. When a lawsuit is expected to be a heavily contested case with a known defendant it is usually best to plead more facts than erring on less.
Likewise, if you are intentionally trying to draw attention to your case for public relations reasons, or as part of your litigation strategy you want it to be picked up by the media, then clearly the advice about pleading less would not be applicable.
Claims For Relief: Refrain From Including Unnecessary & Duplicative Claims
The general rule we recommend in most cases (unless specific exceptions apply) is that plaintiffs should be putting in less claims for relief than more. Unless a claim adds something new or an advantage that defamation does not, in most cases the claim will be duplicative and just create more work (and legal fees) to assert.
For example, we do not recommend asserting claims like tortious interference, false light, or intentional infliction of emotional distress in addition to defamation in most cases involving internet defamation.
In most cases, these claims give you the same damages and arise out of the same defamatory publication. Therefore, it does not matter how you try to classify or plead them, Courts will always see it as just another defamation claim.
All claims in which facts arise out of the same publication as the defamation claim will generally rise and fall the same as the defamation claim. This is without much more analysis, unless there is something unique and distinct about what you are trying to argue with an alternative claim.
Simply put, a defamation case is a defamation case. Do not waste your time and energy (or legal bills) clouding your claim’s legitimacy and creating more work for the court by including unnecessary alternative claims for relief.
Equitable Relief & Monetary Damages
Generally, when requesting relief at the end of your lawsuit, the best course of action is to just plead whatever the jurisdictional minimum is in the court you file, with an exact amount to be determined at trial. Pleading hundreds of thousands of dollars or millions can draw unwanted attention to your case, which is usually the opposite of what you want to accomplish. do not make this mistake.
However, this advice does not apply if you need to plead special damages for a claim of defamation per quod. It also will not apply if the Court you are filing in has a rule that mandates you plead more specific general damage amounts.
Regardless of how specific your damage claims need to be pled, make sure to assert a right to claim all types of available damages, including:
- Actual damage,
- Special damages,
- Punitive damages,
- Out-of-pocket costs and expenses,
- Lost business,
- Emotional distress and harm in the community, and more!
Asking for injunctive relief (permanent injunction) is also essential for stopping the defamation and preventing the spread and subsequent publishing of a libelous and false accusation. This includes requesting the removal of content from wherever it appears, de-indexing the content from online search results, and an order that the defendant will not publish the libelous and false accusation again.
Failing to request injunctive relief is a big mistake, as making sure the false accusations come down and are not published again is often the primary goal of most libel lawsuits. Therefore, it is vital to request this relief in your complaint.
Request For a Jury: Should You?
Do not forget to request a jury. The general rule of thumb is to request a jury – however, this should be thought through carefully. Consider the sophistication of your client, how likable they are, as well as other factors. This is ultimately up to you or your client, and should be thought through very carefully.
You can usually withdraw your request later on if you change your mind, but you cannot always request one if you forget to in your complaint. Since either party can demand a jury too, if the other side wants one, it will not matter if you want one or not if they make the request.
Work With Experienced Internet Attorneys to File a Defamation Lawsuit
If you are the target of defamatory internet attacks and feeling overwhelmed by the steps needed to file a defamation lawsuit, do not worry. We are here to help.
At Minc Law, we have extensive experience filing internet defamation lawsuits to hold online perpetrators liable for their actions, remove defamatory content, identify anonymous posters (when applicable), and put an end to accompanying online harassment and attacks.
Internet defamation cases are not easy, but the chances are if you have read this far, that you are troubled by online defamation or harassment. To take the next step towards putting an end to defamatory internet attacks and taking back your reputation, we recommend checking out our article explaining the cost to sue for internet defamation.
You can also find a more in-depth explanation of Minc Law services and pricing over at our Pricing Page.
If you would like more personalized advice and a quote for your specific defamation issue, we offer a free, no-obligation initial defamation consultation. You can contact us by reaching out to a Minc Law Chat Representative, sending us an email, filling out our contact form, or calling us at (216) 373-7706.