By:  Dorrian Horsey, Attorney

In any civil lawsuit, the term “damages” refers to the sum of money the law imposes for a violation of rights. Plaintiffs looking for a monetary award as part of their lawsuit need to prove their entitlement to damages. Proving damages in a defamation lawsuit can be a challenge.

In most defamation cases, there are three types of damages a victim may be able to recover:

  • Actual or Compensatory Damages– which fall into two categories:
    • Special Damages – which reimburse plaintiffs for actual losses
    • General Damages – which reimburse plaintiffs for emotional distress and reputational harm
  • Nominal Damages – which reimburse plaintiffs for a minimal amount that acknowledges a legal wrong has occurred but actual damages have not been proven.
  • Punitive Damages – which can be awarded to punish and deter wrongful conduct.

To prove damages in a defamation lawsuit, you want to gather evidence of your expenses and losses that occurred after the defamation. In this post, we’ll provide a primer on damages in defamation lawsuits. We’ll cover:

  • the challenges of proving damages
  • the types of damages available to plaintiffs
  • how to prove damages
  • recent defamation cases that yielded large payouts

Before I delve into specific techniques for proving damages, I’ll start with a brief background on damages in defamation cases.

Defamation Remedies Tip: While jail time is not a common consequence for libel, there are other civil remedies available. Equitable relief, content removal, and monetary relief are available remedies for victims of libelous behavior.

The Difficulty With Damages in Defamation Lawsuits

Defamation lawsuits do not always end in a large pay-day for plaintiffs. In fact, calculating and proving damages is especially difficult when it comes to defamation. One New Jersey court admitted this challenge, stating evidence of injury to reputation is elusive…inherently amorphous, and often defies exact measurement. Sisler v. Gannett Co., 516 A.2d 1083,1096 104 NJ 256, 281 (1986).

Awarding defamation damages can be very subjective and each jurisdiction has its own rules about what entitles a plaintiff to recovery. No two defamation cases are exactly alike, and courts undergo damage analysis on a case by case basis. This does not mean that defamers are not held accountable. A defamer can be liable for their statements, even if they aren’t ordered to pay the victim. This is because courts view liability and damages as two separate issues.

Your ability to recover damages also depends on the type of defamation case you have. There are two types of defamation claims: Defamation Per Se and Defamation Per Quod.

Defamation Per Se

Defamation per se involves statements which are so defamatory and libelous, that damage to a plaintiff’s reputation is presumed. In these cases, victims do not always need to prove actual economic damages, but they should still present evidence of general or non-economic damages to avoid being awarded only nominal damages which can be as low as $1.

In most states, there are four types of statements which constitute defamation per se:

  • Statements alleging the Plaintiff has committed a crime
  • Statements alleging the Plaintiff has a “loathsome” disease such as an STD
  • Statements claiming the Plaintiff is unchaste or has engaged in sexual misconduct
  • Statements claiming the Plaintiff has committed professional misconduct

Once a victim proves the existence of per se defamation, they will not need to prove reputational harm. Harm is automatically assumed.

Defamation Per Quod

On the other hand, defamation per quod is not as clear cut. This type of defamation includes statements that do not fall under a defamation per se category. This means the victim will need to prove damages.

Many defamation cases fall under the defamation per quod category, making damages an important element to prove.

Content Removal Tip: There are three primary ways defamation victims can have fake posts and malicious comments removed: (1) work with an experienced defamation removal attorney, (2) dispute the post via a third-party arbitration service, (3) send a DMCA takedown notice.

Types of Damages Available If You’ve Been Defamed

Whether you’ve experienced defamation per se or per quod, it’s important to know what damages are available to you.

Damages are an umbrella term for any form of monetary compensation awarded to a victim in a civil case. Most defamation plaintiffs seek to recover actual damages in the form of special damages and general damages and punitive damages if they are available.

Special Damages

Special damages are relatively straightforward and are also referred to as economic damages. As you might imagine, an award of special damages is meant to reimburse a victim for actual economic losses. Actual losses might include lost income, lost business, and expenses incurred in response to the defamation.

Special damages must be well-documented. The good news is that this can be accomplished with evidence that can be easy to obtain such as bank statements, tax returns, and proof of expenses in the form of invoices and receipts. Plaintiffs can also offer testimony to back up their claims for actual damages.

You may need the help of an expert witness to help prove damages. In defamation cases, expert witnesses usually offer specialized knowledge in forensic accounting, business, public relations, or IT. Expert witnesses can explain to the court the exact nature of the defamation and its impact on the victim. They can also provide complex financial analysis to calculate your economic damages. The unbiased, professional opinion of an expert witness can go a long way toward influencing a jury’s decision to award damages.

General Damages

General damages can be harder to quantify in a defamation case. They are also referred to as non-economic damages. General damages compensate plaintiffs for emotional distress and reputational harm caused by the defamation.

Proving emotional distress can be a difficult task in a defamation lawsuit. While it’s intuitive that defamatory statements emotionally affect a victim, proving this is a challenge. Expert witnesses can help prove emotional distress, and their testimony can sometimes be weighted more heavily than the victim’s testimony. If you’ve experienced emotional distress as a result of defamation, keep track of how it has impacted your daily life including disruptions to your routine such as sleeping habits, appetite, and participation in social activities.

Reputational damages are a common consequence of defamation. A plaintiff’s testimony alone may be insufficient to obtain an award for reputational damages. The best way to prove harm to your reputation is to offer third-party testimony or objective evidence of damage to your reputation.

Jump to the “Defamation Claims That Led to Judgments” section of this post for some examples of how plaintiffs have proven damages.

Punitive Damages

The purpose of punitive damages is not to compensate you as the plaintiff for the defendant’s actions to defame you. Courts may award punitive damages to punish and deter the defendant’s wrongful conduct.

Generally a plaintiff must prove actual malice to be awarded punitive damages. Actual malice can be proved by showing the defendant knew the statement they made about the plaintiff was false or acted with reckless disregard about whether it was false.

The amount that may be awarded varies by jurisdiction and courts may reduce the amount of punitive damages if they determine them to be excessive. However, plaintiffs have been awarded millions of dollars in punitive damages when the defendant’s conduct is egregious.

How to Prove Your Damages in a Defamation Lawsuit

If you feel a defamation lawsuit is in your future, it’s wise to begin documenting damages as soon as possible. Start with hard documentary evidence such as bank statements and legal fee invoices, then reach out to third parties for support.

The following list details the type of damages you’ll want to document, with ideas on how to obtain proof.

Expenses Incurred to Mitigate Damages

Keep copies of your invoices when you request help to fight defamation and take steps to lessen its impact, i.e. “mitigate” your damages. This can include invoices from attorneys and public relations professionals. It can also include any fees paid to remove defamatory content from the Internet. Anyone you hire to respond to the defamation may be able to testify in support of mitigation damages.

Medical Expenses

If you seek medical help for issues related to defamation, such as therapy or psychiatric help, save your invoices. Also, if you see medical professionals for stress-related ailments, such as high blood pressure or anxiety attacks, keep proof of your visits.

In addition to your medical bills, you can also ask for testimony from your medical professionals. Their testimony about the physical toll of defamation may help you recover medical fees and also support a damage award for emotional distress associated with the defamation.

Lost Earnings, Clients & Revenue

If you’ve experienced defamation, keep a watchful eye on your income, especially if you are a business owner. If you start seeing a decline in revenue or clients failing to pay, track the changes. Also, a reduction in prospective clients could show reputational harm.

Besides financial records, you can ask others if the defamatory content influenced their decision to stop working with you. They may provide useful testimony to help prove your losses.

Future Losses: Earnings, Revenue & Opportunities

If you have a business and work with an accountant, chances are you have made cash flow projections. While projected earnings aren’t set in stone, they can help show losses after defamation.

If defamation has led to you getting rejected for employment, you may be able to claim lost future income.

Attorney Fees

Attorney fees are incurred after the defamation when you seek legal advice and pursue legal action. Attorney fees are not recoverable in many jurisdictions, but they are relatively easy to prove and may be recoverable in some instances.

Miscellaneous Expenses

Every defamation case is different, and so are the damages. This list of potential damages is not exhaustive, so you should take care to track all changes after defamation has occurred. Companies with extensive intellectual property (IP) may experience losses in the value of their IP. Individual victims may face other losses that don’t fall into the other categories listed.

Bottom line: once someone makes defamatory statements about you or your business, keep an eye open for negative financial changes you experience.

Protection from Blackmail: To protect yourself against online extortion, blackmail, and sextortion: (1) make sure to screenshot and preserve all relevant evidence and communication, (2) have a trusted friend or family member help with the documentation, (3) stop engaging with the online blackmailer, (4) do not pay them any mount of ransom or try to negotiate, (5) adjust your social media privacy settings, (5) set up a Google Alerts account to receive notifications any time your name is mentioned online.

Quantifying Reputational Damage & Emotional Distress

Many victims of defamation are anxious to testify and have their concerns heard by a court. This may be cathartic for victims, but personal testimony alone rarely leads to monetary awards.

Reputational damage and emotional distress are highly subjective in a legal system that is designed to be objective. Proving reputational damage and emotional distress in concrete ways is the cornerstone of any defamation lawsuit.

The best way to do this is through documentary evidence, third party testimony, and expert witnesses. Each can offer a degree of objectivity and neutrality that courts favor. Plus there can be a correlation between the amount of objective evidence presented and damages awarded.

Defamation Claims That Led to Judgments

To explore what it takes to prove damages, let’s discuss a few defamation cases involving online content that yielded judgments for plaintiffs. Keep in mind that damages analysis is specific to each case and once liability has been established, there are many different ways to prove damages and damages awards can vary widely depending on the facts of the case.

Defamatory Google Reviews

In Fireworks Restoration Co., LLC v. Hosto, the plaintiff successfully brought a defamation claim against a former business partner who posted three fake Google reviews about the business after their relationship soured. The jury awarded the plaintiff $150,000 in punitive damages which was upheld on appeal.

The court noted that the testimony of third parties as to the plaintiff’s diminished reputation and the evidence presented of plaintiff’s financial losses after the negative reviews were posted was sufficient to prove reputational damage. Fireworks Restoration Co., LLC v. Hosto, 371 SW 3d 83 – Mo: Court of Appeals, Eastern Dist., 2012.

Defamatory Websites

In Bouveng v. Nyg Capital LLC, the plaintiff was awarded $1.5 million in compensatory damages for her defamation claim against her former employer which was upheld on appeal.

In this case, the plaintiff did not seek economic damages, but the appeals court based its decision to uphold the verdict on the damage the plaintiff suffered to her reputation.

The defendants engaged in an extensive online campaign to defame plaintiff for almost a year by posting defamatory articles on an online magazine they owned. The articles accused the plaintiff of being a sex slave, drug dealer, extortionist, engaging in fraud and included numerous other defamatory statements the appeals court described as “egregious.” The defendants also used SEO techniques to manipulate the plaintiff’s search results which resulted in the statements reaching hundreds of thousands of people.

The court found that the plaintiff’s reputation had been grievously damaged. In assessing the reputational damage suffered by the plaintiff, the court noted evidence of the extensive reach of the defamatory statements, their prominence in the plaintiff’s Google search results and their likelihood to harm the plaintiff’s reputation in the future. Bouveng v. NYG CAPITAL LLC, 175 F. Supp. 3d 280 – Dist. Court, SD New York, 2016.

Defamatory Facebook Posts

In Laughland v. Beckett, the plaintiff was awarded $15,000 in general damages and $10,000 in punitive damages after the defendant created a fake Facebook account impersonating him. The court found that the defendant was motivated by a desire to win romantic favor with the plaintiff’s former girlfriend.

The account posted numerous statements about the plaintiff that the court found defamatory such as calling himself a swindler, a bank manipulator and a bad father. The fake account made active attempts to communicate with other individuals on Facebook about the plaintiff and had six friends. The trial court found that the fake Facebook account had damaged the plaintiff’s reputation.

The court also found that the defendant’s actions were intentional and malicious which supported a punitive damage award to punish him and deter others from similar conduct. The judgment was affirmed on appeal. Laughland v. Beckett, 870 NW 2d 466, 365 Wis. 2d 148, Wis: Court of Appeals, 2015.

There are obviously many more examples of cases in which plaintiffs were awarded damages for defamation, but the most important thing to remember is that proving damages associated with defamation is difficult but not impossible.

Anonymous Poster Identification Tip: You can identify anonymous online posters with a subpoena, social media forensics, and by tracking IP data.

Minc Law Can Help You Prove Damages in Your Defamation Case

If you’ve been the victim of defamation, reach out to the experienced defamation attorneys at Minc Law. In our tenure as nationally recognized online defamation attorneys, we’ve litigated in over 22 states and 3 countries.

Reach out to us to schedule your free initial consultation by calling us at (216) 373-7706, or filling out our contact form.

Together, we can maximize your chances of recovering damages.

Are you being defamed online? We will get it removed. Contact Minc Law today!

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