If you are the victim of defamatory attacks online or in person, it can be difficult to know how best to stop the harassment, remove the content, and restore your reputation. You may be wondering, “Is it worth suing for defamation?”
Ultimately, the question of what makes a defamation lawsuit worthwhile comes down to its likelihood of success—and what success means to you.
If your primary goal is to recover significant financial damages from the defamer, that may ultimately be extremely difficult to achieve unless you have a defendant with money and strong, direct evidence tying your losses to the defamatory statements. Damages in defamation lawsuits are typically tied to actual financial losses, which are often difficult to prove were caused by false statements.
Other potentially recoverable damages, such as reputational harm and emotional distress, can be difficult to quantify. On the other hand, if your goal is to correct a public wrong or falsehood about you, or to ensure that defamatory content is removed from the internet, then this is more realistic and achievable. In these cases, suing for defamation may be worth it.
It is also important to consider the costs and risks associated with suing for defamation. Litigation can take many months, or even years, and is very expensive. For that reason, we typically ask clients, are there any available alternatives that can accomplish your goal with less time and financial investment? If the costs and risks of filing suit outweigh the likelihood of success, or there are alternative methods to achieve your goal, then it may not be worth suing for defamation.
In our experience litigating hundreds of defamation claims at Minc Law, we have found that there is no one-size-fits-all answer to “if it is worth suing for defamation.” However, our experience with assessing defamation claims, unmasking anonymous defamers, litigation strategy, and implementing alternatives to litigation has helped us identify the crucial questions each potential client should ask themselves before bringing a claim – to enable clients to better determine if it is worth it for their unique situation.
In this article, we explain how to assess the viability of a defamation claim and the factors that may impact your decision to sue. We then explore alternative approaches that you may consider before suing for defamation.
Before you can determine whether it is worth filing a defamation lawsuit, it is important to know what constitutes defamation—and whether you have an actionable claim. This section explores the definition of defamation along with common examples.
Definition of Defamation
A defamatory statement is a false assertion of fact made to a third party about you that damages your (or your business’s) reputation. While states may vary in their definition of defamation and have their own defamation laws, traditionally this broad term is broken into two types:
- Libel: A defamatory statement made through “written publication” like text, photos, and videos; and
- Slander: A defamatory statement published via spoken communication.
Common Examples of Defamation
Defamation can take a multitude of shapes in today’s digital age. In our practice, we specifically handle internet defamation – where an individual defames another person or entity on the internet. At Minc Law, we often see these common defamation scenarios:
- False online reviews or customer ratings on sites like Google and Yelp;
- Inaccurate information or identifications in media publications and news articles;
- Fake profiles, statuses, posts, and comments on social media platforms like Facebook and TikTok,
- Untruthful reports and posts on shaming or cheater websites accusing victims of committing crimes or infidelity.
Assessing the Viability of a Defamation Lawsuit
While defamation is unfortunately common in today’s digital environment, not every damaging or untruthful statement may be worth filing a defamation lawsuit over. The strength of your legal claim is key to determining if suing for defamation is worth the effort and cost.
Below, we explore several ways to assess your likelihood of success when bringing a defamation claim.
Strength of Your Defamation Claim
First, you must have a valid defamation claim. At a minimum, you should ensure that the four elements of defamation are present:
- A false statement of fact,
- Was published to a third party,
- With at least a negligent level of intent,
- That damaged the plaintiff’s reputation.
We recommend consulting with an experienced defamation attorney to help you evaluate the facts and merits of your claim.
Documentation of Defamation
Not only should the publication or communication fit your jurisdiction’s legal definition of defamation, but you should be able to prove these elements with sufficient evidence.
Some defamatory statements are easier to prove than others. For instance, libel (written defamation) is more likely to be preserved in a tangible medium than slander, which is spoken.
Document all instances of the allegedly defamatory statement(s). You can do this by taking screenshots of the posts, comments, or content, or by using professional grade preservation software and tools such as Visualping and PageVault. This also includes preserving evidence of any specific damages that you or your business have suffered as a result of the statements, such as diminished sales or third parties reaching out to you mentioning they saw the content.
Further, document the timeline of when each instance of defamation occurred, as this may be valuable for pursuing litigation further down the road.
Factors That May Impact the Potential For Success
The success of your defamation lawsuit may depend on several factors, including:
- Whether you are a public or private figure,
- The statute of limitations,
- How difficult it will be to prove you suffered damages,
- The potential defamation defenses available to the defendant, and
- Your jurisdiction and the venue of the case.
Public vs. Private Figure
Generally, private individuals must only prove the defendant was negligent regarding the defamatory statement’s truth or falsity.
On the other hand, public figures and officials usually need to prove that the defendant acted with actual malice when communicating or publishing the allegedly defamatory statement.
The “actual malice” standard means they made the false statement with knowledge of its falsity (or reckless disregard for the truth). Meeting this standard can be challenging as it requires proving the defendant’s state of mind.
Statute of Limitations
Another key factor in the strength of your defamation claim is how much time has passed since the defamatory statement was published. The statute of limitations is the limited window of time during which plaintiffs can bring a lawsuit.
Most states in the U.S. require you to file a defamation lawsuit within one year of when the defendant first published, communicated, or made the slanderous or libelous statement. If you miss this deadline, the judge will likely dismiss your case.
However, the discovery rule is one exception to this requirement. This rule provides that the statute of limitations only begins after the statement’s subject discovers it. Most jurisdictions do not recognize the discovery rule in defamation actions.
To learn more about the discovery rule, see our in-depth post: “What is the Statute of Limitations For My Defamation Claim?”
You must prove that you suffered actual harm due to the defamation. An offensive statement that simply hurts your feelings likely does not rise to the level of an actionable claim. On the other hand, you may have a strong case if the false statement harms you in one or more of the following ways:
- Lost job opportunities,
- Lower sales or revenue for your business,
- Expensive damage mitigation (such as public relations fees), and
- Mental distress, depression, or other physical symptoms.
To learn more about gathering evidence of harm suffered, see our article: “How to Prove Damages in a Defamation Lawsuit.”
Because U.S. law prioritizes the right to free speech, defamation is an extremely defense-friendly claim. In other words, defendants may rely on one or more of a handful of defenses to avoid liability in a defamation lawsuit.
Before filing a claim, consider whether the defendant may be able to rely on one or more of these common defamation defenses:
- The statement is at least substantially true;
- The statement is opinion (can be neither proven nor disproven);
- The statement is privileged due to the speaker’s occupation or circumstances; or
- You consented to the statement’s publication.
Knowing what the alleged defamer may argue in their defense can help strengthen your claim and mitigate risk.
Jurisdiction & Venue
It is also essential to consider your jurisdiction, or where you can sue, which may affect if filing a defamation lawsuit is worth it. In almost every case, proper jurisdiction is where the defendant either lives or publishes the defamatory statement. Other relevant jurisdictions may include:
- The place where you live,
- The place where your business operates, or
- The location of the statement’s audience.
If you have multiple available options, consider how each jurisdiction’s laws and procedures can affect your case. Your attorney can help you evaluate precedent, case law, statute of limitations, and enforceability of judgments for each possible filing location.
Important Considerations to Determine if Suing For Defamation is Worth It
Before filing a defamation lawsuit, it is essential to understand your ultimate goal. You should also consider the cost and potential risks of entering into a complex, drawn-out litigation process.
We explore each of these considerations in greater detail below.
What is Your Ultimate Goal to Remedy the Defamation?
First, consider your primary goal. What outcome are you hoping to achieve at the end of the lawsuit?
Commonly in civil lawsuits, plaintiffs simply want monetary compensation for the harm they suffered. But defamation cases are often different. For defamation plaintiffs, the primary goal is usually not financial; it is about restoring their reputation. Many defamation victims wish for injunctive relief such as:
- Removal of the defamatory content from the internet,
- Orders preventing the defendant from making future harmful statements, and
- Nondisparagement agreements.
In some defamation cases, the defamer made the harmful statements anonymously. If the defendant cannot be identified or refuses to comply with non-litigation options, your only path forward may be to file suit to obtain a court order for that content’s removal.
Some clients’ primary motivation is to correct harmful statements about themselves and protect their reputations. Sometimes, a public restriction or apology is all that is necessary. Injunctive relief can often be easier to achieve than obtaining significant financial damages.
But if your goal is retribution against the defendant, it may be difficult to find satisfaction and adequate closure from litigation. Seeking a large monetary award can be a challenging, lengthy, and costly process.
Legal Costs of Suing for Defamation
Defamation claims are not particularly simple or speedy processes. The cost of a defamation lawsuit can range widely based on a variety of factors, including:
- Your attorney’s fee structure and billable rate,
- The court’s filing fees,
- How easy it is to find or identify the defendant(s),
- Whether the defendant contests the allegations,
- The complexity of your defamation case,
- The amount of discovery required,
- Whether you need to hire local counsel,
- How easy it is to prove your case,
- How long litigation lasts and the number of court appearances needed,
- How much you seek in monetary damages, and
- What kind of relief (legal or not) you request.
While there is no set-in-stone figure to determine the total cost of a defamation lawsuit, these are here are a few general numbers to help you set your expectations:
- The very low end of defamation lawsuits can cost from $5,000 to $8,500. These are cases where the facts are simple and straightforward and the litigation resolves very early on.
- The average uncontested online defamation case at Minc Law is resolved for an average of $15,000.
- On the higher end, trial costs alone in defamation cases may range from $50,000 to $60,000, with average monthly costs between $4,000 to $6,000. For a case that goes all the way through trial, your total costs can exceed $100,000.
Risks of Suing for Defamation
Suing for defamation and succeeding is never guaranteed, as there are countless risks associated that might ultimately make exploring alternative options more appropriate. The potential risks of bringing a defamation claim include:
- Uncertain outcomes,
- The difficulty of obtaining damages,
- Potential counterclaims,
- Paying the other side’s attorney fees, and
- The Streisand Effect.
Defamation cases can be difficult because they often involve intangible problems. Unlike a personal injury case where you can prove damages with medical bills, the damage you suffered from defamation may not easily be quantifiable in monetary terms. Defamation’s harm is often related to personal relationships, reputation, and mental distress.
Proving this kind of harm often requires in-depth data gathering, expert opinions, and deep knowledge of how information spreads online. Because each case’s harm is so different, there is no easy way to predict how a judge or jury will rule.
Even if the judge or jury rules in your favor, it can be difficult to collect damages from the defendant. Most defamation defendants are individuals who are not wealthy and do not have the ability to pay a significant judgment.
The court could order the defendant to pay you $1 million—but if they do not have that much money, you may never realize those damages.
If a defendant has a viable counterclaim, such as that the plaintiff first defamed them or that the plaintiff abused the legal system by suing for defamation, this may ultimately increase the time and costs associated with the lawsuit and could result in the court actually awarding damages against you.
Paying the Other Sides Attorneys’ Fees
If you lose the case (or even for procedural reasons), you may be ordered to pay the defendant’s attorneys’ fees. Many states have Anti-SLAPP statutes that allow defamation defendants to recover their attorneys’ fees for defamation suits based on speech that is deemed constitutionally protected. Since defamation is such a defense-friendly claim, there is a substantial risk that you may not only fail to recover damages but be responsible for paying money to the defendant instead.
Triggering the Streisand Effect
There is always the risk that the public visibility of bringing a defamation claim can do more harm than good. Your attempt to suppress a situation can often bring more attention to it—a social phenomenon known as the Streisand Effect.
Filing a defamation suit against a publisher, for instance, can bring more unwanted attention to the harmful statement even if you win the lawsuit. Even in a strong defamation case, the risks can sometimes outweigh the potential benefits. The decision to file a defamation lawsuit is not one you should take lightly.
Explore Alternative Approaches to Addressing Defamation
Depending on your situation, there may be litigation alternatives you can take to address defamation. If an alternative approach to litigation remediates the problem satisfactorily, it may not be worth suing for defamation.
Mediation & Arbitration
Alternative Dispute Resolution (ADR), which includes dispute resolution techniques such as mediation and arbitration, can be a highly effective alternative to litigation. In fact, many courts require some form of ADR before a civil case can go to trial.
A settlement conference often takes place in which a neutral entity attempts to convince each party to reach a settlement agreement.
To learn more about defamation settlements, we recommend checking out our article, “What is the Average Defamation Settlement?“
Utilize Reputation Management Services
Another way to resolve your matter without litigation is to bolster your reputation in other ways. Online reputation management (ORM) uses online marketing, search engine optimization, and public relations to reduce the impact of harmful online content. These services use techniques such as:
- Content suppression,
- Public relations services,
- Wikipedia page creation and management,
- Review management,
- Web design and management,
- Content marketing,
- Search engine optimization (SEO), and
- Online reputation monitoring.
ORM services may not be able to remove unwanted content entirely, but they can help repair and bolster your reputation as a temporary solution. To learn more about ORM, see our articles “Why Hire an Attorney as Your Online Reputation Expert” and “How Much Does Online Reputation Management Cost?”
Direct Negotiation & Content Removal Services
Depending on the situation, you may be able to communicate with the defamer directly and negotiate removal of the harmful content. If you know the defamer’s identity, your attorney can send a cease and desist letter informing them you will take legal action if they do not stop the harmful behavior. These letters can be a much faster and more affordable method than a lengthy litigation process.
However, we recommend working with an experienced defamation attorney to draft and send a cease and desist letter, as a poorly worded letter can ultimately do more harm than good.
If the defamer published your copyrighted content, another solution could be sending a DMCA takedown notice. The Digital Millennium Copyright Act protects copyright owners in the digital space. Sending a DMCA takedown notice to a web host or service provider is often an effective way to have infringing content removed quickly.
It may also be possible to send an editorial or retraction request to news publications or de-indexing requests to search engines. There may be multiple ways to remove content at its source or suppress it from public view; it is best to consult an experienced content removal attorney to discuss your options.
Is It Worth It to Sue For Defamation?
While you may be interested in the potential damages you can recover if you win, the decision to file a defamation lawsuit should not be based on the money you hope to recover.
Whether suing for defamation may be “worth it” depends instead on your specific situation and desired outcomes. In the end, most clients in our experience feel that suing for defamation is worth the cost if the defamatory content in question is removed and the accompanying pain and harassment are effectively put to an end.
An experienced defamation attorney can help you evaluate your options (both litigation and non-litigation) and weigh the risks, benefits, and costs.
“I feel so relieved and grateful to Minc Law. And in particular, to the help of Nathan Woodward and his staff. I had requested repeatedly and unsuccessfully removal of a comment on an organization’s website that I had not wanted used publicly for marketing purposes. I could not for the life of me reach the owner of the site despite varied attempts. Mr. Woodward was able to reach and solicit response from the owner, so that the content was taken down SWIFTLY and my problem resolved. Mr. Woodward and the Minc Law team handled my case professionally and efficiently, with a very fair fee structure as well.”
May 4, 2023
We can help you explore if suing for defamation is right for you and your specific situation. To explore your legal options to remove defamatory content and identify anonymous online defamers, 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.