- What is Defamation? How Does Michigan Define Defamation?
- Important Michigan Defamation Requirements & Formalities
- Private v. Public Defamation Plaintiffs: Which One Am I?
- Most Popular Defenses to Michigan Defamation Lawsuits
- Michigan Defamation Damages
- Frequently Asked Questions (FAQ)
- Work With the Defamation Removal Attorneys of Minc Law Today!
What is Defamation? How Does Michigan Define Defamation?
The tort of defamation is an all-inclusive term for the spoken, written, or otherwise published false assertion of fact to a 3rd party, which subsequently causes injury or harm to another person’s reputation. In the United States, and other Common Law jurisdictions (Australia, United Kingdom, Canada), defamation is classified as a tort, and thus, a civil wrong, meaning it is often accompanied by the request for damages. Defamation may also be referred to simply as “defamation,” or “defamation of character.”
Specifically, the tort of defamation may be divided into two fundamental types; slander and libel. Keep in mind that it is extremely important to acquaint yourself with the both definitions, as the legal requirements and formalities for both can differ greatly – meaning you may ultimately be barred from bringing a claim if you fail to adhere to the specific legal requirements.
Let’s take a look at the definitions of both libel and slander:
- Libel Definition: Libel refers to a written or published false assertion of fact (think text, media, videos, photographs) to a third-party or medium, which subsequently causes injury or harm to another party’s reputation.
- Slander Definition: Slander refers to the spoken communication or publication of a false assertion of fact to a third-party or medium, which subsequently causes injury or harm to another party’s reputation.
Unfortunately, the general public oftentimes mixes up both slander and libel, incorrectly using “slander” as a catch-all term for defamation. The reality of the defamation landscape in the U.S. is that with the rise of the Internet and social media platforms, libel is actually the most common form defamation takes. While it also may not seem like that important of a distinction to draw, it actually stands to impact your rights as a defamation plaintiff in very serious ways.
For example, most states have differing legal requirements and formalities for both slander and libel actions, and failing to familiarize yourself between the two could lead to you being barred from lodging a defamation claim or having it dismissed later down the line. And, as slander concerns itself with the spoken communication and publication of a false assertion of fact, evidence is often fleeting or easily forgotten, therefore slander plaintiffs typically are required to initiate their action much earlier than libel plaintiffs. Don’t miss out on being able to bring a claim because you mixed up the definition of libel and slander!
So, what are some other names for defamation of character and the tort of defamation?
Defamation may also be referred to as:
- Character assassination,
- Traducement, &
It’s extremely important to understand that the term “disparagement” is incorrectly used when referring to defamation, as it concerns itself with a person or organization’s financial and proprietary rights, not their reputation. Defamation refers to a false statement of fact which subsequently harms another person’s reputation, while disparagement refers to a statement or communication which has an adverse effect on a business or company’s financial and proprietary rights.
Disparagement is a separate tort itself, and may be referred to as “the tort of commercial/business disparagement.” You can read up further about disparagement, it’s core differences from defamation, the elements required to succeed in a claim, and how to bring an action for commercial disparagement, by checking out our blog post here.
What do you call a person who communicates or publishes a defamatory and false statement?
- Libelers: the term used to describe persons who publish defamatory and false assertions of fact to another person.
- Slanderers: the term used to describe persons who verbally communicate a false assertion of fact to another person.
- Defamers: the general name ascribed to persons who publish or communicate false and defamatory statements to a third party.
- Famacide: a rather archaic and rarely used term for persons who commit defamation, famacide means “to destroy another person’s reputation.”
Now that we’ve take a look at the general principles and ideas driving United States libel and slander laws, let’s take a look at how Michigan defines defamation, along with the requisite elements a Michigan defamation plaintiffs needs to prove in order to succeed in their defamation claim.
Michigan’s Definition of Defamation & Requisite Elements
Under Michigan defamation law, “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” Smith v. Anonymous Joint Enterprise, 793 N.W.2d 533, 540 (2010). Note that in Michigan, defamation includes both libel (written defamation) and slander (spoken defamation).
Furthermore, for the purposes of this blog post on Michigan defamation law, the ‘MCLA’ stands for ‘Michigan Compiled Laws Annotated (Lexis) and ‘MSA’ stands for ‘Michigan Statutes Annotated’.
For Michigan libel and slander plaintiffs to succeed in their defamation action, they must prove the following four (4) elements:
- A false and defamatory statement concerning the plaintiff,
- An unprivileged communication to a third party,
- Fault amounting at least to negligence on the part of the publisher, and
- Either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication.
Note that when looking to element one of a defamation claim in Michigan, the defamatory statement must be of and concerning the plaintiff. In Michigan, a jury will determine the “of and concerning element.
Also keep in mind that other parties who were injured indirectly may also file a derivative lawsuit. Peisner v. Detroit Free Press, 104 Mich. App. 59, 304 N.W.2d 814 (1981).
You might be wondering, can corporations (for-profit and not-for-profit) be defamed?
Simply put, yes.
Under Michigan defamation law, a for-profit corporation can be defamed if “the matter tends to prejudice it in the conduct of its business or to deter others from dealing with it.” Heritage Optical v. Levine, 359 N.W.2d 210, 212 (1984).
Additionally, a not-for-profit corporation can be defamed if “the matter tends to interfere with its activities by prejudicing it in public estimation.” Thereby, interfering with the sources of income for the corporation. Id.
To help further your understand of how Michigan defines defamation, let’s take a look at three core examples.
- A condominium developer was granted an injunction against a defendant who was posting defamatory things about the developer, contractor, and development. While most of the comments were generally true, they contained specific factual inaccuracies that made them defamatory. Rooks v. Krzewski, No. 306034, 2014 Mich. App. LEXIS 604 (Ct. App. Apr. 3, 2014).
- Publicly claiming that a jail administrator brought a controlled substance to a prisoner would have been defamatory except for the fact that the plaintiff was a public official. Stewart v. Lee, No. 331130, 2017 Mich. App. LEXIS 905 (Ct. App. June 8, 2017).
- A student made a parody Twitter account of a lawyer’s Twitter account. Ultimately, the court held that parodies are protected speech if a reasonable viewer would know that the parody is not stating actual facts about the person. Levitt v. Felton, No. 326362, 2016 Mich. App. LEXIS 1006 (Ct. App. May 19, 2016) (unpublished).
In this all-encompassing blog post, we’re going to walk you through all four (4) elements required to be proved in order to succeed in a defamation claim in Michigan.
Curious to compare Michigan’s defamation laws to other U.S. states? Head on over to our United States defamation and libel laws mega-page and interactive map.
United States Defamation Law Tip: Due to the United States enforcement and longstanding history of the First Amendment and U.S. Constitution, it is typically considered a pro-defendant jurisdiction for defamation claims. Conversely, other Common Law jurisdictions (Australia, Canada, United Kingdom) and European countries are generally considered pro-plaintiff defamation jurisdictions.
Are you a resident of Michigan or another U.S. state and have been the victim of malicious online attacks and defamation? Reach out to the nationally recognized defamation removal attorneys of Minc Law now! At Minc Law, we’re here to help take back your reputation and control your online presence.
In our tenure as defamation lawyers, we’ve removed over 25,000 pieces of defamatory online content, litigated in over 19 states and 3 countries, and boast a nearly 100% defamation takedown rate. And, we do it all for a flat, reasonable fee. Rest assured when working with Aaron Minc and the defamation lawyers of Minc Law, you’re in good hands.
As United States defamation law (and Michigan defamation law) can be highly nuanced and confusing, we strongly recommend you contact an experienced defamation removal attorney before attempting to remove libelous comments and posts from the Internet.
It’s time to put an end to online abuse and attacks NOW!
Now that we’ve walked you through Michigan defamation law’s defamation definition and the required four (4) elements for a successful libel and slander claim, let’s take a look at what defamation plaintiffs must plead and prove when initiating a defamation action.
Michigan’s Defamation Pleading Standard
Before getting into the requisite pleading standard for defamation claims in Michigan, let’s first understand the purpose behind pleadings and what exactly they are. Furthermore, we’re going to address why our present legal system requires them. And, we imagine you’ve likely heard one of the following terms thrown around before.
To start, what are pleadings?
Pleadings are at the very heart of all legal actions and are the precursor to all legal actions and claims. Specifically, pleadings are formal written statements and documents which must be filed with a court, which state:
- A party’s claims,
- The issues of the case,
- Important facts of the case, and
- Any relevant defenses.
As defendants aren’t typically initiating lawsuits against themselves, pleadings are first filed and proffered by the plaintiff. Think about it, what reason would a defendant have for bringing a lawsuit against themselves? After the initial filing by the plaintiff, a defendant will then have the opportunity to respond and counter with any relevant claims, facts, or arguments.
Now, let’s take a look at some of the most commonly used pleadings:
- Complaint: the complaint is the first pleading first set forth by the plaintiff, which outlines their core allegations, claims, issues, and arguments. It also outlines their facts of the case, and includes a “prayer for a relief,” which is a request and statement for damages suffered and claimed.
- Answer: the answer is as its name implies, an answer to the plaintiff’s initial complaint. A defendant’s answer responds to all the allegations, claims, issues, and facts proffered by the plaintiff, and also includes any relevant defenses a defendant may choose to rely on in order to skirt liability.
- Reply: as a defendant’s answer may sometimes raise new claims, allegations, facts, and issues, the reply is a plaintiff’s response to any new information raised by the defendant.
- Counterclaim: sometimes, a defendant may have other claims and allegations against the plaintiff, as such, they may file a counterclaim, which then may offset any of the initial claims and accusations set forth by the plaintiff.
All U.S. states will have their own respective pleading requirements, therefore we highly recommend you consult an experienced professional before bringing a defamation claim. Consulting an experienced defamation attorney is essential for exploring all relevant legal claims and defenses, along with understanding important defamation requirements, deadlines, and formalities.
With one of the most sophisticated and complex legal systems in the world, it’s important to understand that most statements will differ (sometimes significantly) in their pleading requirements and formalities.
For example, one U.S. state in the Northeast may require libel plaintiffs to bring their libel claims within a shortened time frame, while another state on the West Coast might be more lenient with their statute of limitations for libel actions. Additionally, some states may require libel and slander plaintiffs to use certain language, or plead their case in a certain way, when initiating a claim, while another may have barebones pleading language and requirements.
So, what is Michigan’s defamation pleading standard?
In Michigan, plaintiffs must plead with specificity the exact defamatory language in question. Additionally, the “of and concerning” element required in their four elements, must be plead in the complaint. Ledl v. Quik Pik Stores, 349 N.W.2d 529, 589-590 (1984).
In cases involving a mass publication, it’s not necessary to identify, in the pleadings, specific individuals to whom the defamatory statements were published. Ben-Tech Industrial Automation v. Oakland University, 36 Med. L. Rep. 1044 *9-10 (Mich. Ct. App.) (unpublished).
Now, let’s turn to the different types of statements that United States defamation law (and Michigan defamation law) have deemed to be so inherently inflammatory and defamatory, that a defamation plaintiff need not actually prove they suffered damage. This legal doctrine is known as “defamation per se,” and may also be referred to as “libel per se” and “slander per se.”
Defamatory Per Se Statements in Michigan
Defamation per se is a legal doctrine which considers certain types of statements as so inherently defamatory and damaging, that a plaintiff need not actually show the defamatory statement(s) in question caused damage to them. When dealing with defamatory per se statements, plaintiffs will benefit from presumed damages, and will not need to plead and prove actual damage to their reputation or person.
Under Michigan law, and in cases of per se defamation, damages will be presumed, and the plaintiff will not be required to plead any damages (special damages). While there are generally four types of defamatory per se statements in most states, Michigan only considers three (3) types of statements as “per se” defamation:
- Statements that a person has committed a crime;
- Statements asserting that someone was not chaste;
- Statements asserting something that would harm the person’s business, profession, or trade.
Under Michigan defamation law, damages for per se defamation include:
“Where defamation per se has occurred, the person defamed is entitled to recover general damages in at least a nominal amount… Where the defamatory publication is ‘maliciously published,’ the person defamed may recover ‘substantial damages’ even where no special damages could be shown. Whittemore v Weiss, 33 Mich. 348, 353 (1876). Whether nominal or substantial, where there is defamation per se, the presumption of general damages is well settled. McCormick v Hawkins, 169 Mich. 641, 650; 135 N.W. 1066 (1912)” Id.
Furthermore, “where, as here, the defamation is slanderous per se, … damages for injury to feelings, otherwise called exemplary or punitive damages, may be found in the absence of damages of a pecuniary nature.” Poledna v. Bendix Aviation Corp., 360 Mich. 129, 145, 103 N.W.2d 789, 796 (1960).
Now, let’s turn to two examples of defamation per se in Michigan.
- Indebtedness: Statements about a businessman’s indebtedness was considered per se defamation because those statements affected the man’s ability to get credit. The man’s business required that he have good credit. Simons v. Burnham, 102 Mich. 189, 60 N.W. 476 (1894).
- Employee firing: An employee was fired because of an alleged theft and the rationale for firing became known to other employees. Under Michigan defamation law, allegations of theft are actionable per se. Poledna v. Bendix Aviation Corp., 360 Mich. 129, 103 N.W.2d 789 (1960).
If you’d like to read up more on the various damages associated with defamation actions and defamation per se, head on over to Section 5: Michigan Defamation Damages.
Defamation Per Quod: The Opposite of Per Se
Opposite to the legal principle of defamation per se is the doctrine of defamation per quod, which requires a plaintiff provide supporting and extrinsic evidence of a statement’s defamatory nature. Due to the fact that defamation per quod is not inherently defamatory or obvious, it requires an actual showing of defamation.
As such, defamation per quod is associated with “special damages,” which we will tackle in Section 5: Michigan Defamation Damages.
Michigan follows the Common Law rule for “per quod” defamation, meaning that only if the defamation in question is not per se, then the plaintiff will have to prove the existence of special harm that was caused by the defamation, or the existence of special harm caused by the publication (defamation per quod). For reference, “special harm” has been held to refer to any actual harm, including mental and emotional suffering. Hall v. Citizens Insurance Co., 368 N.W.2d 250 (1985).
Defamation By Implication: Not All Defamation is Obvious
Sometimes defamation is not explicitly obvious and may be disguised in perfectly normal seeming statements. Such type of statement will give rise to the legal principle of defamation by implication.
Under Michigan defamation law, an implication can succeed only if the plaintiff proves that the defamatory implication is materially false. American Transmissions, Inc. v. Channel 7 of Detroit, Inc., 609 N.W.2d 607 (2000). Such claims “face a severe constitutional hurdle.” Locricchio v. Evening News Ass’n, 476 N.W.2d 112, 129 (1991).
Additionally, a statement having a potentially non-false interpretation is not actionable, at least in an actual malice case. See In re Hon. John M. Chmura, 626 N.W.2d 876 (2001).
Let’s take a look at a Michigan case where the court addressed defamation by implication.
- “In a case such as this, where the plaintiff is claiming injury from an allegedly harmful implication arising from the defendant’s article, he must show with clear and convincing evidence that the defendant intended or knew of the implication that the plaintiff is attempting to draw.” Battaglieri v. Mackinac Ctr. for Pub. Policy, 680 N.W.2d 915, 921 (2004).
U.S. Defamation Law Fact: “Forum shopping” has become a popular method of litigating in not only the United States, but the world, where plaintiffs seek out favorable jurisdictions which are most likely to rule in favor of their case. In the context of defamation, forum shopping may be referred to as “libel tourism.”
If you’ve been the victim of online defamation, libel, or slanderous attacks, and aren’t sure of exactly how to proceed, contact the defamation lawyers of Minc Law now by calling us at (216) 373-7706, or by scheduling a meeting online.
It’s time to take charge of your online narrative.
Important Michigan Defamation Requirements & Formalities
As we’ve touched on in Section 1, United States defamation law is highly complex and always evolving, creating a rather difficult legal landscape to navigate. With all the time sensitive and substantive requirements and formalities, it’s important to acquaint yourself with the most pressing, as doing so could mean the difference between your defamation claim succeeding or being dismissed.
In this section, we’re going to take you through:
- The jurisdictional reach of Michigan courts over out-of-state defendants,
- Where Michigan defamation plaintiffs may commence an action for defamation,
- The statute of limitations for bringing a defamation claim, &
- Plenty more.
Let’s first start with Michigan’s jurisdictional reach over out-of-state defamation persons and defendants.
Michigan’s Legal Jurisdiction Over Out-of-State Defamation Defendant
So, you’re probably wondering whether Michigan courts have personal jurisdiction over out-of-state defamation defendants… The simple answer is yes, however, there are several requirements.
Under Michigan law, “The ‘constitutional touchstone’ of a due process analysis with respect to personal jurisdiction is whether the defendant purposely established the minimum contacts with the forum state necessary to make the exercise of jurisdiction over the defendant fair and reasonable.” Burger King Corp v Rudzewicz, 471 U.S. 462, 474; 105 S. Ct. 2174; 85 L. Ed. 2d 528 (1985).
Michigan uses a three-part test to determine minimum contacts:
“First, the defendant must have purposefully availed himself of the privilege of conducting activities in Michigan, thus invoking the benefits and protections of this state’s laws. Second, the cause of action must arise from the defendant’s activities in the state. Third, the defendant’s activities must be substantially connected with Michigan to make the exercise of jurisdiction over the defendant reasonable.”
Let’s take a look at an example:
- In a 2011 Michigan case, a medical spa was libeled by a competing medical spa online. The court in the case looked to both the slicing scale test from Zippo and the effects test from Calder. In the end, the court found that personal jurisdiction was not established under either test. Lifestyle Lift Holding, Inc. v. Prendiville, 768 F. Supp. 2d 929 (E.D. Mich. 2011).
Now, let’s turn to Michigan’s long arm statute(s), which reads:
“The existence of any of the following relationships between an individual or his agent and the state shall constitute a sufficient basis of jurisdiction to enable a court of record of this state to exercise limited personal jurisdiction over the individual and to enable the court to render personal judgments against the individual or his representative arising out of an act which creates any of the following relationships:
- The transaction of any business within the state.
- The doing or causing an act to be done, or consequences to occur, in the state resulting in an action for tort.
- The ownership, use, or possession of real or tangible personal property situated within the state.
- Contracting to insure a person, property, or risk located within this state at the time of contracting.
- Entering into a contract for services to be rendered or for materials to be furnished in the state by the defendant.
- Acting as a director, manager, trustee, or other officer of a corporation incorporated under the laws of, or having its principal place of business within this state.
- Maintaining a domicile in this state while subject to a marital or family relationship which is the basis of the claim for divorce, alimony, separate maintenance, property settlement, child support, or child custody.”
“The existence of any of the following relationships between a corporation and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise general personal jurisdiction over the corporation and to enable such courts to render personal judgment against the corporation.
- Incorporation under the laws of this state.
- Consent, to the extent authorized by the consent and subject to the limitations provided in section 745.
- The carrying on of a continuous and systematic part of its general business within the state.
For example, in a 2000 Michigan case, a plaintiff was trying to hold personal jurisdiction over a company that made some sales in Michigan and had an online catalog that sold to Michigan customers. The court ultimately held that the company did not fall within either statute because it was not closely tied enough to the state to fall into any of the categories. David M. Clapper & Forthright II, Inc. v. Freeman Marine Equip., Inc.., No. 211139, 2000 Mich. App. LEXIS 661 (Ct. App. June 16, 2000).
If you’re a Michigan resident and have been libeled or maliciously attacked online and are unsure of whether Michigan courts have personal jurisdiction out of the poster in your case, we strongly recommend you contact an experienced online defamation removal attorney now! Doing so will not only save you stress, but time and future hardship.
Now that we know the reach of Michigan’s courts over out-of-state defendants, let’s take a look at which venue a defamation plaintiff may sue a defendant in.
Where Can I Sue For Defamation in Michigan?
Simply put, “venue” refers to the court in which a plaintiff may commence a suit against a defendant.
In Michigan, proper venue will be in the county where the original injury occurred and in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is location. MCLA 600.1629(1)(a); MSA 27A.1629(1)(a).
But, what if no county even exists for the defendant in question?
If no county exists for any defendant, suit may be brought in the county in which the original injury occurred and where the plaintiff resides, or conducts business, or in which the registered office of a plaintiff corporation is located. MCLA 600.1629(1)(b); MSA 27A.1629(1)(b).
In a defamation case in Michigan, the “original injury” will have deemed to occurred in the county of initial publication. Yono v. Carlson, 283 Mich. App. 567, 770 N.W.2d 400, 37 Media L. Rep. 2226 (2009).
U.S. Libel Removal Tip: Setting up a Google Alerts account is an effective step towards combating online reputation and preventing a further spread of false and malicious information. Simply enter your name, along with any related keywords you’d like to be alerted of, and you’re on your way towards being notified anytime your name and those keywords are mentioned anywhere online.
As we noted in Section 1, it’s absolutely critical for defamation plaintiffs to properly identify the form in which a defamatory statement was communicated or conveyed, as it could stand to impact your legal rights and remedies. Most notably, misidentifying the form in which a defamatory statement is communicated may have an effect on the time limit you have to bring you claim – this is also known as the statute of limitations.
Choice of Law: What Test Does Michigan Follow?
Think of “choice of law” as an integral procedural step in the litigation process, where varying legal jurisdictions and states are competing to rule on the claim at hand. Ultimately, the court must determine the “proper law” to apply to the case at hand.
When considering which state’s laws to apply to the case, courts will generally consider the location where the tort was committed, where a contract was drafted and signed, and where a couple’s wedding and marriage was officiated and registered.
It’s important to keep in mind that above are just a few examples of what a court may look to in order to determine the “proper law.”
Let’s take a look at three core choice of law tests which are used by U.S. courts:
- The Traditional Test – First Restatement: When applying the traditional test to the case at hand, courts will generally look to the cause of action. And, typically in cases of tort law and fraud, the court will choose to apply the law of the land or location where the tort or wrong occurred. A general rule of thumb is that the last event prior to and leading up to the injury will likely be the place of the wrong or tort.
- The Significant Relationship Test – Second Restatement: When applying the significant relationship test, courts will seek to determine the most relevant policies and laws of each jurisdiction and state, the policies driving such laws, each state’s interest in the matter’s adjudication, and how easy it will be to enforce a judgment.
- The Governmental Interest Analysis Test: A good portion of states are already using or starting to implement the governmental interest analysis test, which will look to where the injury occurred, where the tortious conduct occurred, the central location of the two parties, and both parties residence and domicile.
Michigan uses the place of injury standard to determine the choice of law. However, it can be overridden if there is a strong public policy or rational reason to override it. Sutherland v. Kennington Truck Serv., 562 N.W.2d 466 (1997).
Let’s turn to Michigan’s defamation statute of limitations and see how it compares to other states.
Michigan’s Defamation Statute of Limitations
Before getting into Michigan’s statute of limitations governing defamation, let’s take a look at why exactly we need statutes of limitations in our legal system, along with the fundamental principles driving their existence.
Simply put, a statute of limitations is a limiting time frame and mechanism for plaintiffs to commence or initiate their action. Should a plaintiff ultimately fail to bring their claim within the prescribed statute or time limit, then the will likely be prohibited from bringing a claim altogether, or they may have their claim subsequently dismissed.
So, why do we have statutes of limitations in the United States?
There’s several core reasons driving the existence and creation of statutes of limitations, including:
- Reasonable Diligence: The U.S. legal system (and all legal systems for that latter) strive to operate like a well-oiled machine, therefore, it’s in our best interest to prevent the clogging of such machine. A statute of limitations requires plaintiffs to bring their claim with reasonable diligence, and also helps eliminate non actionable and frivolous claims.
- Preservation of Evidence: As we’ve touched on with slander, evidence may be fleeting. Furthermore, most companies or persons are not retaining documents or information they’ve deemed to be unnecessary to their practice, therefore it’s not uncommon for evidence to be destroyed or lost. Having a statute of limitations in place helps prevent the destruction or loss of evidence.
- To Prevent “More Cruelty Than Justice”: Without proper notice or time to prepare one’s case, defendants would be unduly burdened, and justice would slowly erode. A statute of limitations enables defendants and other parties to receive sufficient notice of the pending action and provides them with sufficient time to prepare their case, evidence, and arguments. This ultimately eliminates more “cruelty than justice.”
So, what is the statute of limitations for bringing or initiating defamation claims in the state of Michigan?
However, note that fraudulent concealment of a claim may extend the statute of limitations by one year.
Fraudulent Concealment of a Defamation Claim
“If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.” MCL 600.5855.
Let’s take a look at an example where a blogger fraudulently concealed their identity from the plaintiff and arbitrator.
In a 2015 Michigan case, an anonymous blogger fraudulently concealed their identity from the plaintiff and arbitrator. Therefore, the plaintiff’s claims were not barred by the statute of limitations. The defendant claimed that the plaintiff’s claim was still time barred because she knew the cause of action existed. However, the understanding was based on an older formulation of the law. Hope-Jackson v. Washington, 311 Mich. App. 602, 877 N.W.2d 736 (2015).
Affecting the statute of limitations in most states is the legal principle of the “single publication rule.” Let’s take a look at where Michigan enforces the single publication rule and how it affects their libel and slander statute of limitations.
What is the Single Publication Rule? Does Michigan Recognize It?
Like a statute of limitations, the single publication rule is also a limiting mechanism and constraint on defamation claims, as it limits a plaintiff’s ability to bring multiple lawsuits against a defendant for a single defamatory publication. Think about it, our legal system would be absolutely cluttered if a plaintiff was able to reopen a case against a defendant everytime a post or comment arose post-publication. Once the matter has been litigated, unless there are extenuating circumstances, or a new publication altogether, a plaintiff may not bring an action again.
Michigan state courts have no adopted the single publication rule. However, the federal courts in Michigan have. Tocco v. Time, 195 F. Supp. 410 (E.D. Mich. 1961) (adopting the single publication rule); Nichols v. Moore, 334 F. Supp. 2d 944 (E.D. Mich. 2004).
Just remember, once a publication has occurred, a plaintiff has a single action for that publication, and not the copies made thereafter. Typically, the day of publication will be considered the day the information was first made public, and will thus start tolling the statute of limitations.
So, how does Michigan’s defamation statute of limitations compare to other U.S. states’?
|Arizona||One (1) year|
|District of Columbia||One (1) year|
|Pennsylvania||One (1) year|
|Ohio||One (1) year|
|Georgia||One (1) year|
|Texas||One (1) year|
|Illinois||One (1) year|
|California||One (1) year|
|Florida||Two (2) years|
|South Carolina||Two (2) years|
|Nevada||Two (2) years|
|New Hampshire||Three (3) years|
|Massachusetts||Three (3) years|
When bringing a defamation suit and controlling libelous and malicious online attacks, it’s extremely important to stay cognizant of your state’s statute of limitations. Don’t risk being barred from bringing a claim altogether just because you mixed up the definitions of libel and slander, or failed to acquaint yourself with the requisite time frame.
If you’re a resident of Michigan, or any other U.S. state, and have been the victim of online defamation or slanderous attacks, we strongly urge you to consult an experienced defamation attorney today! Call us at Minc Law now!
In our tenure as nationally recognized defamation lawyers, we’ve secured the removal of over 25,000 pieces of online defamation, and boast a nearly 100% online defamation removal rate. And, we do it all for a flat, reasonable fee. Know that when working with the defamation attorneys of Minc Law, you’re in good hands.
The online abuse and attacks stop now!
Private v. Public Defamation Plaintiffs: Which One Am I?
One of the biggest factors affecting a defamation plaintiff’s rights and recovers under U.S. defamation law is their status in the community and society. Understanding the various types of defamation plaintiff is extremely important for bringing a defamation claim, as the burdens of proof for each plaintiff will likely differ. For example, U.S. libel and slander laws typically recognize two core types of plaintiffs: the public plaintiff and figure, and the private plaintiff and figure.
In this section, we’re going to address the cases and history shaping such distinction between defamation plaintiffs. And, we think you might just be surprised to learn what type of defamation plaintiff you are.
So, let’s get right into it. Why do U.S. courts distinguish between public and private plaintiffs?
At the very heart of U.S. defamation law and the distinction between public and private plaintiffs is the case of New York Times Co. v. Sullivan. In Sullivan, the U.S. Supreme Court opined and ruled that it was integral when assessing a plaintiff’s rights and remedies to impose differing burdens on plaintiffs depending on their status in society.
But, what’s the reason behind this?
The Supreme Court ultimately held that differentiating between the two was essential for the furtherance of “uninhibited debate of public issues.” After all, our democracy and society was founded upon the principles of free speech and open debate. And, should a person be restricted from talking openly about certain key figures in today’s society and community, it would be an unfair and undue burden upon their right to free speech.
Furthermore, there are persons in the community and society who have voluntarily availed themselves to public criticism, debate, and comment, meaning they should have a stricter burden of proof to meet in cases of defamation.
Below are the two separate burdens of proof for both public and private plaintiffs and figures in the U.S.
- Public Plaintiffs/Figures: Think of your celebrities, politicians, and other notable figures in society. Public figures are simply persons who have either voluntarily or involuntarily availed themselves to the public light, criticism, comment, and debate. They are often at the forefront of shaping our society, and as such, should be able to be discussed openly and publicly without the fear of legal recourse. However, there is a line. Public figures must meet a strict burden of proof when bringing a defamation claim, by showing that the defendant acted with actual malice or reckless disregardwhen publishing or communicating the statement(s) in question.
- Private Plaintiffs/Figures: If you’re reading this blog post, and have never been subject to the public light, or any hot topic issues or controversies, they you likely fall under the category of “private plaintiff.” Private plaintiffs and figures are everyday persons who have not voluntarily or involuntarily availed themselves to public comment, criticism, or debate, and as such deserve a higher degree of privacy in the world of defamation law. Think about it, if you’re minding your own business and have never had any desire to be in the public light, why should you be openly criticized and defamed on an online or public platform? Private plaintiffs and figures must only require a defendant acted with ordinary negligence when publishing or communicating a defamatory statement(s).
While there are two fundamental types of defamation plaintiffs, most states choose to expand upon both sets of plaintiffs even further. Michigan breaks down the above two types of plaintiffs into four types:
- Private Plaintiffs:
- Public Officials:
- General Purpose Public Figures, &
- Limited-Purpose Public Figures.
To help you better understand the four types of defamation plaintiffs recognized in Michigan, below is a comprehensive table comparing the four.
Note that if you’ve been the victim of defamatory and false online attacks and are unsure of what category of plaintiff you fall into, contact an experienced defamation attorney immediately. Doing so will prevent hassle, and ultimately save you time. Furthermore, it may be the difference between being allowed to bring your claim and being prevented altogether.
|Michigan’s Four Classifications of Defamation Plaintiffs||Private Plaintiffs||Public Officials||All-Purpose Public Figures||Limited-Purpose Public Figures (LPPFs)|
|Definition||Persons and plaintiffs who have not voluntarily or involuntarily thrust themselves to the forefront of public debate, comment, criticism, or interest. All other plaintiffs who do not fall into any of the other three categories may be considered “private plaintiffs.”||Michigan defines public officials as a person whose “position is of such apparent importance that the public has an independent interest in his qualifications and in his performance of his duties beyond the general public interest in the qualification and performance of government employees.” Peterfish v. Frantz, 168 Mich. App. 43, 424 N.W.2d 25 (1988).||A public figure is “a person who by his accomplishments, fame or mode of living, or by adopting a calling which gives the public a legitimate interest in his activities, affairs, and character, has become a public personage.” Arber v. Stahlin, 382 Mich. 300, 305, n. 4, 170 N.W.2d 45 (1969), cert. denied, 397 U.S. 924 (1970) (dictum).||“A private person can become a limited-purpose public figure when he voluntarily injects himself or is drawn into a particular controversy and assumes a special prominence in the resolution of that public controversy. Lins v Evening News Ass’n, 129 Mich App 419, 432; 342 NW2d 573 (1983). However, a private person is not automatically transformed into a limited-purpose public figure merely by becoming involved in or associated with a matter that attracts public attention. The court must look to the nature and extent of the individual’s participation in the controversy.” New Franklin Enters. v. Sabo, 192 Mich. App. 219, 222, 480 N.W.2d 326, 328 (1991).|
|Burden of Proof||Ordinary negligence – private plaintiffs have the burden of proving a defendant published or communicated a defamatory statement with ordinary negligence.||Actual malice – generally, public officials will have to prove a defendant published or communicated a defamatory statement with actual malice on all matters public and private.||Actual malice – public figures must prove a defendant published or communicated a defamatory statement with actual malice.||Actual malice – note that often limited-purpose public figures only need to prove a defendant published or communicated a defamatory statement with actual malice in regards to the particular or issue or controversy which has made them a public figure.|
|Examples||Think of your everyday persons who are not at the forefront of the public’s eye or thought. If you’re reading this, you likely fall under the category of private plaintiff.||In Michigan, an administrator of a county jail was considered a public official. Stewart v. Lee, No. 331130, 2017 Mich. App. LEXIS 905 (Ct. App. June 8, 2017).||The most common examples of public figures include politicians, celebrities, and sports athletes.||Persons who inject themselves or are drawn into a particular public controversy. For example, some states have ruled a person posing for a magazine to be a limited-purpose public figure in regards to their role posing for the magazine.|
Defamation Removal Fact: It bears repeating that online defamation is like a wildfire, so it’s important to put it out before it has time to spread further. With the rise of the Internet and technology, it’s now easier than ever to communicate and disseminate information globally. Online defamation can not only affect your personal life, but your professional one as well.
Note that actual malice in a libel action will be shown where the writing in question is made with knowledge that it’s false or with reckless disregard for whether or not it’s false. MCL 600.2911(6); Smith v. Anonymous Joint Enter., 487 Mich. 102, 793 N.W.2d 533, 540-541 (2010).
Reckless disregard is defined under Michigan case law as – whether the defendant in fact entertained serious doubts as to the truth of his publication; ill will, spite, hatred, failure to investigate or even attempt to do harm to the plaintiff do not amount to actual malice. Grebner v. Runyon, 132 Mich. App. 327, 347 N.W.2d 741, 1984 Mich. App. LEXIS 2475 (Mich. Ct. App. 1984).
Keeping in line with the idea that defamation law should differentiate between public and private plaintiffs for the purposes of furthering uninhibited debate and a true democracy, let’s now take a look at issues of public and private concern – which also boast differing burdens of proof to be met.
Now that we’ve walked you through all the requisite elements for bringing a defamation of character claim in the state of Michigan, along with all the important legal formalities and requirements, let’s take a look at the countless defenses a defamation defendant may rely on in order to skirt defamation liability.
Most Popular Defenses to Michigan Defamation Lawsuits
In the wild world of United States and Michigan defamation law, there’s numerous defenses a libel or slander defendant may rely on when facing a defamation action.
In this section, we’re going to take you through the most commonly used defenses to the tort of defamation in the United States and Michigan.
- Privilege (Absolute, Qualified, Statutory)
- Reporter’s Shield Law
- Libel-Proof Plaintiff Doctrine
- Wire Service Defense
- Communications Decency Act
First, we’re going to start with possibly the most commonly used defense to the tort of defamation in the U.S., the defense of opinion.
Opinion: Can the Statement Be Verified as Fact?
At the very heart of a defamation claim and its definition is the false assertion of fact which is published or communicated to a third party. A false assertion of fact means that it is a statement which may be independently be verified or proved to be true or false. Note that if a statement or its contents are independently verifiable as fact, then a libel or slander claim may be brought. However, if a statement cannot be verified as fact, or true or false, then a defamation defendant may possibly rely on the defense of opinion – which will allow them to avoid defamation liability.
The Michigan Constitution provides broader protections than the United States Constitution through the Supreme Court’s interpretation of the First Amendment through Milkovich. Specifically, “[e]very person may freely … publish his views on all subjects.” Michigan Constitution Art. 1 § 5.
To be defamatory, a statement must be provable as false and be capable of being reasonably interpreted as stating actual facts about the plaintiff. Ireland v. Edwards, 230 Mich. App. 607, 584 N.W.2d 632 (1998). Hyperbolic statements are protected speech as well. “Speech that can reasonably be interpreted as communicating “rhetorical hyperbole,” “parody,” or “vigorous epithet” is constitutionally protected.” In re Chmura, 464 Mich. 58, 72, 626 N.W.2d 876, 886 (2001).
Terms such as ‘blackmailer,’ ‘traitor,’ ‘crook,’ ‘steal,’ and ‘criminal activities’ must be read in context to determine whether they are merely exaggerations typically used in public commentary. Ghanam v. Does, 303 Mich. App. 522, 845 N.W.2d 128, 42 Media L. Rep. 1386 (2014). “The context and forum in which statements appear also affect whether a reasonable reader would interpret them as asserting provable facts.” Id. “Internet message boards and similar communications are generally regarded as containing statements of pure opinion rather than statements or implications of actual, provable fact.” Id.
Below are three Michigan cases and examples which addressed the defense of opinion:
- Professional competence: Questioning a professional’s competence is protected as opinion under Michigan law: “This is an expression of plain everyday ordinary communication between human beings of every ilk and stripe. It is patently ridiculous that courts should be required to countenance claims of libel … from everyday ordinary communication.” Swenson-Davis v. Martel, 135 Mich. App. 632 (1984).
- Politics: Calling a political opponent a “liar” in a campaign flyer was not protected as opinion where reasonable readers would understand the statement to describe actual facts and not mere rhetoric. Ulrich v. Shilling, 2003 W.L. 21540387 (Mich. Ct. App.) (unpublished).
- Various interpretations: If a statement has several possible interpretations, it will be viewed as an opinion. Edwards v. Detroit News, Inc., 322 Mich. App. 1 (2017).
Keep in mind that sometimes opinion is not always so direct and easy to identify, and may be “mixed” or cloaked within a statement. Typically, if the opinion implies or suggests that a speaker or publisher knows of undisclosed or uncommunicated facts, then this is enough to tip the scale in favor of being considered defamatory.
Truth & Falsity: An Absolute Defense to Defamation
It should be no surprise by now that the assertion of false facts to a third-party is at the crux of defamation in the United States. While the truth may hurt a person’s feelings, and make them feel embarrassed or guilty, it does not constitute grounds for an actionable libel or slander claim.
Under Michigan defamation law, truth is an absolute defense to defamation. Michigan treats statements as true as long as they are substantially true. Hantz Group v. Haney, 2010 LEXIS 2288 (Mich. Ct. App.).“[D]efendants in defamation suits are not required to prove the statement “is literally and absolutely accurate in every minute detail.” Rouch v Enquirer & News of Battle Creek Michigan, 440 Mich 238, 258; 487 NW2d 205 (1992).
So, can I bring a defamation claim if only part of the alleged statement at hand is true?
The Substantial Truth Test
The substantial truth tests asks whether any reasonable person could find the statement to be a supportable interpretation of its subject.
If a statement has a potentially non-false interpretation, it is likely not actionable, at least in an actual malice case. Bailey v. Mathers, 2005 W.L. 857242 (Mich. Ct. App.), 33 Media L. Rep. 2003 (unpublished).
Simply put, if the core messager or “sting” of the statement is still true, then the substantial truth test will consider a statement to be truthful and immune from defamation.
What’s the fault standard for defamation in Michigan?
As noted in Section 1, in Michigan, the standard of fault for defamation is AT LEAST negligence on the part of the publisher or communicator, and actual malice if the person being defamed is a public figure or official. Rouch v. Enquirer & News, 398 N.W.2d 245, 252 (1986).
Privilege: What Types of Statements Are Privileged in Michigan?
Privilege is true to its name, and refers to a person’s legal “privilege” or right to publish or communicate a specific type of statement, at a certain time, and to a particular audience. At its very core, privilege is a party’s legal right to say or do something, even if it’s defamatory.
As we’ve emphasized countless times in this blog post, the promotion of uninhibited debate and free speech is at the very heart of United States defamation law, so it should be of no surprise that legal privilege exists in order to further such principles. Privilege exists at the heart of our decision making processes and bodies, enabling persons or parties to communicate statements in order to further economic, political, legal, social, and other important policies and regulations.
In this section, we’re going to take you through the most common privileges relied on in Michigan and the United States:
Absolute Privilege: The Most Comprehensive Form of Privilege
Absolute privilege sits at the very top of the food chain when it comes to legal privilege in the United States, as it enables parties to publish or communicate defamatory statements in particular situations and with actual malice or reckless disregard.
Due to its near blanket immunity, absolute privilege is essential for our decision making processes and bodies, as it enables persons to communicate and publish statements addressing all sides of an issue – even a negative or defamatory one. Absolute privilege is typically granted in legislative and judicial proceedings, as it is in our best interest to have those at the heart of our legal and political bodies speaking freely about hot-topic and important issues.
Let’s take a look at three examples and cases of absolute privilege in Michigan:
- Any statements made during a judicial, legislative, or military hearing are absolutely privileged under Michigan law. Timmis v. Bennett, 352 Mich. 355, 89 N.W.2d 748 (1958). Absolute privilege for statements made during judicial proceedings has been interpreted broadly.
- “Where an alleged defamatory statement, occurring in the course of a public debate initiated or perpetuated by plaintiff himself, is focused precisely on a matter lying at the heart of the debate, … it is hard to imagine anything that could more effectively chill legitimate public debate.” Kevorkian v. American Medical Association, 237 Mich. App. 1, 602 N.W.2d 233, 28 Media L. Rep. 1532 (1999).
- Statements made to law enforcement officials are absolutely privileged in the state of Michigan. Tyler v. Roesner, Nos. 286918, 287401, 288239, 288240, 2010 Mich. App. LEXIS 1043 *9 (Ct. App. June 8, 2010).
Now, let’s take a look at a second type of privilege which can be viewed as absolute privilege’s less comprehensive younger sibling – qualified privilege.
Qualified Privilege: Defeated by Actual Malice & Reckless Disregard
While absolute privilege extends to persons who communicate or publish defamatory statements with actual malice of reckless disregard, qualified privilege does not. Qualified privilege may also be commonly referred to as common interest privilege or conditional privilege.
Simply put, qualified privilege is a person’s legal right or privilege to publish or communicate a defamatory statement, to a particular audience, at a certain time. And, oftentimes, the audience hearing or reading the question, generally has a reciprocal interest in the statement and information.
Additionally, qualified privilege is typically granted to persons in positions of trust and authority, who have not only a legal or social duty to communicate such statement(s), but a moral one as well.
In Michigan, “Qualified privilege exists in a much larger number of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. And the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation.” Bacon v. Mich. C. R. Co., 66 Mich. 166, 170, 33 N.W. 181, 183 (1887).
In a 1979 Michigan case, a court affirmed that there is a qualified privilege where one has a legal or moral duty. Wynn v. Cole, 91 Mich. App. 517, 284 N.W.2d 144 (1979).
Note that statements published “to the world via the Internet” are not entitled to the privilege. Park West Galleries, Inc. v. Global Fine Art Registry, LLC, 38 Media L. Rep. 1521, 2010 LEXIS 22888 (E.D. Mich. 2010).
Finally, the Common Law doctrine of fair comment and criticism on matters of public interest is recognized. Van Lonkhuyzen v. Daily News Co., 203 Mich. 570, 170 N.W. 93 (1918).
Statutory Privilege: It’s the Law
Statutory privilege is legal privilege drafted and codified by law, with a defined scope and punishments.
It’s important to understand that statutory privileges are also absolute privileges under Michigan law.
For example, there is a statutory privilege protecting against media liability for fair and true reports of public and official proceedings in Michigan. MCLA 600.2911(3); MSA 27A.2911(3). A report is “fair and true” if the “gist” is substantially true. Northland Skating v. Free Press, 213 Mich. App. 317, 539 N.W.2d 774 (1995).
Libel Removal Fact: In certain countries, libel and defamation are not considered civil wrongs or offenses, and are instead considered crimes. In 2012, the UN Human Rights Committee issued a statement that Philippine libel law was incompatible with Article 19 of the ICCPR, and ultimately urged states to the covenant to consider decriminalizing defamation and libel.
For a simple breakdown of the definitions and differences between the three types of privilege commonly relied on in Michigan, below is a comparison chart and table.
|Definition||The most comprehensive form of privilege which enables parties to communicate or publish a defamatory statement – even with actual malice or reckless disregard.||Also known as common interest privilege, qualified privilege is a less comprehensive form of privilege enabling persons in positions of trust and authority to communicate or publish defamatory statements to a specific audience. Generally, the audience hearing such statements must have a reciprocal interest in hearing them communicated.||Legal privilege drafted and codified by law, protecting speakers from defamation liability for communicating and publishing certain types of statements.|
|Can it be defeated?||No – even if the party communicates or publishes the statement with actual malice or reckless disregard.||Yes – if a party communicates or publishes the statement with actual malice or disregard.||No – as statutory privilege is also absolute under Michigan law, it may not be defeated (even if the statement is published with actual malice or reckless disregard).|
|Examples||Statements made during a judicial, legislative, or military hearing are absolutely privileged in Michigan. Statements made to law enforcement officials are also absolutely privileged.||All communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty. Note that statements published to the Internet are not entitled to qualified privilege under Michigan law.||Fair and true reports of public and official proceedings are protected under statutory privilege in Michigan.|
Now, let’s turn to four lesser known defenses in the United States.
Reporter’s Shield Law: Preserving Reporter Integrity
Under Michigan’s reporter shield statute, reporters are protected from being required to disclose the identity of a confidential source and unpublished information in grand jury proceedings. (MCLA 767.5a; MSA 28.945(1)).
Michigan’s reporter’s shield law reads:
“A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry authorized by this act, except an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted.”
Michigan’s reporter’s shield law also extends to subpoenas issued by prosecutors under MCL 767A.6.
Libel-Proof Plaintiff Doctrine: A Plaintiff So Reviled
Sometimes a plaintiff bringing a defamation claim is so reviled in their community, that the defamatory statement(s) in question actually does no harm to their reputation. Such person is referred to as the ‘libel-proof plaintiff’, as they are essentially immune from libel.
Generally, U.S. courts have considered small town criminals and drug users/dealers to be libel-proof plaintiffs, as they are well known in their communities and already widely loathed or looked down upon.
Michigan has not ruled on any notable cases concerning a libel-proof plaintiff.
Wire Service Defense: Rarely Used, But Still Relevant
Although a relatively out-dated and forgotten defense, the wire service defense is still applicable to defamation claims concerning communications made via reputable wire services. Specifically, the wire service defense protects media and news organizations from defamation liability for publishing communications and information received via a “reputable wire service.”
At present, no Michigan court has ruled on any noteworthy cases concerning the wire service defense.
The Communications Decency Act (CDA): Near Blanket Immunity For ISPs
The federal and state courts of Michigan have not had any cases that would necessitate them going beyond the basic purpose of the CDA, that is to protect ISPs – Internet Service Providers – from defamation liability for posts and comments made by third-party users.
Under Section 230 of the Communications Decency Act, ISPs are immune from defamation liability for anything someone else posts to their site. Such principle is similar to how telephone companies are not held liable for the nefarious and illegal communications made via their telephone lines.
Let’s take a look at two cases in Michigan concerning the CDA.
- A defendant posted tortious allegations online about a condominium developer. The defendant could not receive any protections under the CDA because he was not the owner of a passive website that merely allowed people to post on it. Rooks v. Krzewski, No. 306034, 2014 Mich. App. LEXIS 604 (Ct. App. Apr. 3, 2014).
- In a 2007 Michigan case, the court held that, under the CDA, Microsoft could not be held liable for possible defamatory material published on its message board. The court analogized this situation to holding the owner of a bulletin board liable for the things people post on the board. Eckert v. Microsoft Corp., No. 06-11888, 2007 U.S. Dist. LEXIS 15295 (E.D. Mich. Jan. 8, 2007).
If you’ve been the subject of online defamation or other malicious, slanderous attacks, and are unsure of the possible defenses to your defamation claim, reach out to the defamation removal attorneys of Minc Law today!
At Minc Law, our Cleveland-based attorneys have secured the effective removal of over 25,000 pieces of online defamation. And, we do it all for a flat, reasonable fee.
Michigan Defamation Damages
Michigan’s fourth and final element for a successful defamation claim requires the proving of a special harm or damage. Damages are awarded to defamation plaintiffs as restitution or compensation for the damage and injury suffered as a result of a defamatory statement(s), and are typically quantified and issued in a monetary form.
Under Michigan law, damages may be divided into four basic types:
- Presumed Damages
- Special Damages
- Actual Damages
- Punitive Damages
Presumed Damages & Per Se Statements
As mentioned in Section 1, per se defamation statements gives rise to presumed damages, meaning a plaintiff need not actually prove they suffered any special damage as a result of the defamatory statement.
It’s important to remember that presumed damages will be issued in cases where a party makes a statement:
- Asserting that someone committed a crime
- Asserting that someone was not chaste
- Asserting something that would harm the person’s business, profession, or trade
Also, keep in mind that damages for per se defamation include the recovery of general damages (at least in the nominal amount). And, in cases where the defamatory publication is ‘maliciously published,’ the defamed party may recover ‘substantial damages.’
Finally, whether the damages are nominal or substantial, where there is defamation per se, the presumption of general damages is well settled. McCormick v Hawkins, 169 Mich. 641, 650; 135 N.W. 1066 (1912)” Id.
Special damages & Per Quod Statements
As defamation per se is associated with presumed damages, defamation per quod is associated with special damages, which require a plaintiff prove the existence of special harm that was caused by the statement(s) in question.
In Michigan, special harm has been held to refer to any actual harm, including mental and emotional suffering. Hall v. Citizens Insurance Co., 368 N.W.2d 250 (1985).
Actual Damages: For Tangible Damage
Under Michigan law, actual damages (also known as compensatory damages) are defined to include the plaintiff’s damages “in respect to his property, business, trade, profession, occupation, or feelings.” MCLA 600.2911(2)(a); MSA 27A.2911(2)(a).
Note that Michigan’s statutory definition cannot constitutionally preclude recovery for injury to reputation. Park v. Detroit Free Press Co., 72 Mich. 560, 40 N.W. 731 (1888).
Punitive Damages: Damages Awarded to Punish
Also known as ‘exemplary damages,’ punitive damages are awarded to plaintiffs in order to punish defendants who acted especially maliciously or egregiously when publishing or communicating a defamatory statement.
Under Michigan law, punitive damages are not recoverable, and exemplary damages are recoverable only to the extent that they are compensatory. They must compensate the plaintiff for additional injury to the plaintiff’s feelings.
The rationale behind such is that the reprehensibility of the defendant’s malicious conduct intensifies the injury to the plaintiff’s feelings and justifies any additional award of exemplary damages as compensation for the increased injury. Kewin v. Massachusetts Mutual Life Ins. Co., 409 Mich. 401, 295 N.W.2d 50 (1980); Hayes-Albion Corp. v. Kuberski, 108 Mich. App. 642, 311 N.W.2d 122 (1981).
|Presumed Damages||Special Damages||Actual Damages||Punitive Damages|
|Definition||Damages generally associated with defamation per se, which do not require a plaintiff to prove actual damage or injury as a result of a defamatory statement(s).||Damages generally associated with defamation per quod, which require a plaintiff to prove the defamatory nature of a statement(s) with extrinsic and supporting evidence.||Damages which affect a plaintiff in respect to his property, business, trade, profession, occupation, or feelings.”||Damages awarded in order to punish defendants for defamatory communications made with actual malice or reckless disregard.|
|How to Prove||As damages are typically presumed, plaintiffs do not need to prove there was injury or harm as a result of a defamatory statement.||In Michigan, special harm has been held to refer to any actual harm, including mental and emotional suffering.||By showing damage in respect to one’s property, business, trade, profession, occupation, or feelings.||Generally, plaintiffs must show a defendant acted with actual malice, reckless disregard, in a wanton manner when communicating or publishing a defamatory statement.|
Online Libel Removal Tip: As online defamation and libel is a highly nuanced and complicated area of law, we strongly recommend you consult an experienced defamation removal attorney to assist in exploring your legal options.
Frequently Asked Questions (FAQ)
Let’s take a look at some of the most frequently asked questions about U.S. and Michigan defamation and libel law.
Q. What has the effect of the Internet had (if any) on free speech in the state of Michigan?
A. In Michigan, “Internet message boards and similar communications are generally regarded as containing statements of pure opinion rather than statements or implications of actual, provable fact.” Ghanam v. Does, 303 Mich. App. 522, 845 N.W.2d 128, 42 Media L. Rep. 1386 (2014).
Q. Are there any specific legal protections for anonymous speech in Michigan?
A. Michigan courts have historically found that their laws for protective orders are satisfactory and sufficient to protect First Amendment rights of anonymous speakers.
However, in specific cases where the anonymous defendant may not know that he or she is the target of a lawsuit, courts have included and added two additional safeguards, namely: (1) the plaintiff must make a reasonable effort to contact the defendant, and (2) the plaintiff’s claims must be sufficient to survive summary judgment. Ghanam v. Does, 845 N.W.2d 128, 141 (2014).
Below are three examples where Michigan courts ruled on protections (or lack thereof) for anonymous commenters and speech.
- In a 2013 Michigan case, an anonymous individual online defamed Cooley Law School. Subsequently, the law school asked the court permission to grant a subpoena to unmask the malicious individual. Keeping with common practice, the trial court in Cooley adopted the Dendrite test. However, the appellate court overruled this decision, finding that the trial court had abused its discretion. On the facts of the case, the appellate court found that Michigan law adequately protected Doe’s rights and denied the subpoena to unmask him, noting: “Under Michigan law, the plaintiff must allege the exact defamatory statements. The plaintiff will have to survive an actual motion for summary disposition on its claims under MCR 2.116(C)(8). And the trial court may consider the weight of the defendant’s First Amendment rights against the plaintiff’s discovery request when determining whether to issue a protective order. Thus, the Dendrite and Cahill standards largely overlap with Michigan’s combined safeguards of a protective order under MCR 2.302 and the summary disposition standards and procedures under MCR 2.116(C)(8).” Thomas M. Cooley Law Sch. v. Doe, 833 N.W.2d 331, 333-334 (2013).
- In one case, a Michigan court distinguished itself from the previous case of Cooley, because in such instance, the defendant may have not been aware of the pending litigation against them. Although, in the end, the court has to uphold the decision in Cooley – holding that the pleading standards are enough. In Michigan, you must plead with specificity the exact defamatory language in question. This 2014 case involved a deputy superintendent of public works, who was therefore a public figure, and the court added two additional safeguards, (1) “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,” and (2) “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).
- Sarka, a scientist, wanted to unmask the identities of fellow scientists who were reviewing his work on a peer review site. The court ultimately had to decide between the frameworks laid in Cooley and Ghanam, stating it did not neatly fit into either framework, but grouped it with Ghanam. But why? This was because the defendants may not have known they were being sued. Sarkar had to overcome the two-part test laid out in Ghanam. The court did find that the plaintiff made reasonable efforts to give notice, however, they found a suit was not likely to survive summary judgment (disposition) because peer review is not capable of a defamatory meaning, and is protected by the First Amendment. Sarkar v. Doe, 318 Mich. App. 156, 897 N.W.2d 207 (2016).
Q. Can Michigan defendants retract, correct, or clarify previously made defamatory statements prior to litigation and lawsuit?
Publication of a retraction or correction will constitute evidence of good faith and can be used in court to mitigate exemplary or punitive damages.
Q. Can Michigan defamation plaintiffs sue out-of-state persons?
A. Simply put, yes. However, there are several caveats and restraints. Please see Section 2 to read up further on important defamation lawsuit requirements and formalities.
Q. Does Michigan have any criminal laws in their books concerning defamation?
A. In Michigan, it is a misdemeanor to falsely and maliciously attribute to another the commission of a crime or infamous or degrading act, as well as to impute to a female a want of unchastity. MCLA 750.370; MSA 28.602.
There are no recent cases under the statute and the above is arguably unconstitutional under Garrison v. Louisiana, 379 U.S. 64 (1964).
Note that there are several other related statutes criminalizing false or malicious statements concerning the financial condition of a:
- Bank (MCLA 750.97; MSA 28.292),
- Insurance company (MCLA 750.389; MSA 28.621), or
- Savings and loan association (MCLA 491.1108; MSA 23.602(1108)).
The statute is considered unconstitutional when applied to limit the right of the press to publish names once it has obtained them. WXYZ, Inc. v. Hand, 658 F.2d 420, 7 Media L. Rep. 1817 (6th Cir. 1981).
Q. What are SLAPP Lawsuits? Does Michigan have any Anti-SLAPP laws and legislation in place to protect persons from such lawsuits?
A. Short for “strategic lawsuits against public participation,” SLAPP suits are lawsuits brought by a person or organization in order to intimidate, burden, scare, or otherwise prevent the opposing party from proceeding with litigation for a specific matter. Such suits are generally frowned upon.
In 2010, the Michigan House of Representatives passed an Anti-SLAPP bill, but it did not ultimately pass the Senate – so, no Anti-SLAPP statutes are in place in Michigan.
Q. What is Prior Restraint?
A. Prior restraint is the censorship of a communication or publication before it’s actually published. Think of it as a preemptive and anticipatory measure to curb and combat defamation.
Michigan legal precedents discussing the prior restraint of potentially defamatory statements do so in the context of a statute which suppresses the district court records and preliminary proceedings in criminal sexual conduct cases. MCLA 750.520k; MSA 28.780(11). In Re Midland Publishing Co., 113 Mich. App. 55, 317 N.W.2d 284 (1982).
Q. Are there any other specific defamation nuances in the state of Michigan?
A. There’s two notable nuances we’d like to draw your attention to.
- Discovery: A 2017 Michigan case involved any interesting discover dispute. The appeals court upheld the trial court’s decision, that because they were satisfied with the production of emails by the defendant, the plaintiff was not entitled to email header information from the ISP (Internet Service Provider) – even though he had suspicions that the defendant was withholding emails. Viggers v. De La Merced Viggers, No. 332481, 2017 Mich. App. LEXIS 1285 (Ct. App. Aug. 10, 2017) (unpublished).
- Damages computation: If a demand is for money damages, a specific amount may not be stated unless “the claim is for a sum certain or a sum that can be computed to be made certain, or if the amount sought is $25,000 or less.” MCR 2.111(B)(2).
Work With the Defamation Removal Attorneys of Minc Law Today!
If you’re a resident of Michigan, or any other U.S. state, and have been falsely accused or defamed online, reach out to the nationally recognized defamation removal lawyers of Minc Law today!
At Minc Law, we have a storied tenure in the world of defamation law, and have removed over 25,000 pieces of online defamation and posts, litigated in over 3 states and 19 countries, and boast a nearly 100% defamation removal rate. But wait, it’s all for a flat, reasonable fee.
Our nationally recognized attorneys know how to get results, and have worked tirelessly with countless website administrators, content managers, and third party arbitration firms in order to secure fast and permanent online defamation removals.
Here’s what you can expect when working with the Cleveland-based attorneys of Minc Law:
- Utmost Respect & Courtesy: Our team of highly trained and experienced defamation lawyers know just how overwhelming and invasive online defamation can be, so rest assured, we’re on your side. After all, your goals are our goals. We’re here to fight for your best interests and reputation.
- Opens Lines of Communication & Dialogue: Communication is everything. Some lawyers go missing once the defamation removal process has begun. Not Aaron and his team. At Minc Law, we’ll make sure to stay in constant contact with you regarding updates and details of your case and online takedown. We’re here to keep you informed.
- Businesses & Websites Respond to Us: Having litigated in over 19 states and 3 countries, and having secured the removal of over 25,000 pieces of defamatory content, businesses and websites respond to us.
It’s time to put an end to online defamation before it has time to sit and spread. The longer you let it sit and embed itself into the inner fabric of the Internet, the more harm and damage it’s going to do to your personal and professional life.