What is a Defamatory Communication?
Defamatory Communication is any communication that harms the reputation of another person or tends to lower his respect or confidence in the community. Defamation can be categorized as libel or slander. Libel may be words or pictures that are written or printed. Slander is defamatory words that are spoken or heard. If such words or pictures tend to cause a person to be viewed by others with feelings of hatred, contempt, ridicule, fear, or dislike, they are considered defamatory.
Defamation laws vary from state to state, but generally a person must prove that a statement was defamatory to make a claim. Most states also recognize that certain statements are defamatory per se, and therefore no proof is needed. These may include:
• Allegations that harm a person’s trade, profession or professional standing;
• Allegations that a person is infected with a sexually transmitted disease;
• Allegations that an unmarried person is unchaste;
• Allegations of criminal activity.
Elements of a Defamation Claim
The following must be established by a person who brings a defamation lawsuit against another:
• The statement was published by the defendant, meaning it was spoken or distributed to at least one other person other than the plaintiff;
• The statement provides enough information that the plaintiff is identifiable;
• The statement harmed the plaintiff’s reputation in some way.
In addition to these, a plaintiff must be able to prove that the defendant was negligent in some way, either in doing something he or she should not have, or failing to do something he or she should have. If the plaintiff is a private figure, he or she must prove only negligence. If the plaintiff is public figure, such as a government official, he or she must prove actual malice, which is a reckless disregard for the truth of the published statement.
Finally, the allegation made about the plaintiff must be false.
Defenses of Defamatory Communication
Truth is an absolute defense to a defamation claim. Even if a person has suffered some harm due to the publication of such statements, if the statements are true, he or she may not collect damages.
If the statements are false, but were expressed as the opinion of another or were not conveyed in a way that would typically reach anyone other than the plaintiff, the defendant may have a defense against a defamation claim. However, the element of publication is satisfied if a statement is made in a way that it would ordinarily reach others, such as loudly stating something in a public place, publishing a statement in a newsletter, or posting something on a bulletin board on the internet. If a statement is made as an opinion or a joke, but is taken seriously by a substantial minority or is deemed likely to be taken seriously by a reasonable person, this element is satisfied and the defamation claim may be successful.
Privilege also is a defense. For example, a person making statements in a court of law cannot be charged with defamation. Public officials making statements about other public officials in the process of performing official duties also are protected. There also is some protection for a reporter who relies on a public document or public official to report information that turns out to be incorrect. However, if such a statement is not tied to any public document or public official, republishing someone else’s defamatory communication, even if it is properly attributed, is not a defense.
If the Statute of Limitations has expired on a defamation claim, the plaintiff has no case. The length of time may vary from state to state, but generally the Statute of Limitations begins with the first date of publication.
Damages for Defamatory Communication
A plaintiff bringing a defamation claim may collect actual damages, including loss of job, loss of reputation and humiliation or mental anguish, if he can prove these losses resulted from the defamatory statement. Recovery may be money damages or a court order demanding a retraction of the statement. Rules vary from state to state.
If a claim is defamation per se, listed above, actual damages are assumed and need not be proven for the plaintiff to be compensated.
A plaintiff may be awarded “special damages”—specific monetary losses—if he or she can prove that these losses resulted from the defamatory statements.
A defendant may be able to lower the damages awarded to a plaintiff if he or she can prove that the plaintiff had a poor reputation before the alleged defamatory statements were made.
Finally, a private individual claiming defamation need only prove that the false statement was made negligently and that he or she was harmed by it in order to collect damages. By contrast, a public figure must prove actual malice, that is, the statements were made with knowledge of their falsity or with reckless disregard for their falsity.
Defamatory Communication can take various forms. Defenses and damages can also vary based on the person and resources involved. The experienced attorneys at Minc Law can help you evaluate your case. Call them today to learn more: (216) 373-7706.