Although a little late for the beginning of 2014, we at Eckert & Smestad introduce our 5 part blog series entitled "New Year's Resolutions." Each blog under this series will tackle a legal issue related to different popular and common New Year's Resolutions. Below, just in time for many people to start giving up on their own resolutions, is part 1:
BE A BETTER PERSON: THE REALITIES OF A DEFAMATION/SLANDER/LIBEL LAWSUIT
A common resolution goes something like this: "I will be a better person this year." This can be an overwhelming, and sometimes too vague and big a task for many people to successfully complete. One aspect of this resolution is to refrain from speaking negatively or spreading rumors about other people. In legal terms (although there are many elements to this, as discussed below), this can lead to a cause of action for defamation, slander, or libel. The legal definition of defamation, according to this Legal Dictionary is "Any intentional false communication, either written or spoken, that harms a person's reputation, decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person." Generally, slander is defamation that is spoken, and libel is defamation that is written.
In order to succeed with a defamation claim, a plaintiff must be able to prove each of the following elements (keep in mind there are many defenses, intricacies, and other legal issues which are involved in defamation claims, and this article is not intended to act as a substitute for the advise of a competent and licensed attorney):
1. The defendant made a FALSE statement of fact about the plaintiff
2. The statement was published to a third party (it was told or written to another person besides the plaintiff)
3. There was fault by the defendant rising to at least the level of negligence (the defendant either made the statement knowing it was false, or with negligence as to whether the statement was false or not); and
4. The plaintiff (or his/her reputation) was damaged by the defendant's statement.
Many people who call attorneys with potential defamation claims call to complain because some person said something negative about them. While this can sometimes give rise to an actionable defamation claim, there are many common problems which must first be considered before one actually attempts to bring a defamation lawsuit against another.
The first problem commonly encountered with many potential defamation claims is that the alleged defamatory statement is an opinion, and not a statement of fact. Many phone calls that come through our office deal with situations in which someone "said I was dumb" or "told my boss that I was a bad employee" or "told my boyfriend/girlfriend that I was a jerk" (although jerk is often not the word used). While these may be false, and while they may be harmful to your reputation, many of these statements do not rise to the level of fact necessary to satisfy the first element. Keep in mind, the first thing that must be proved is that the statement was false. If someone calls you dumb, you will first have to prove what criteria must be used to judge what "dumb" meant in this particular situation, and then prove that you do not fit that certain criteria. A more actionable statement would be that some person "said I had an IQ of 40" or "told my boss that I was embezzling money" or "told my boyfriend/girlfriend that I was cheating on them." These are statements that can easily be disproven.
The second common problem with potential defamation claims is one of damages. Even if one can satisfy all of the elements of a defamation/slander/libel claim, the plaintiff must then be able to answer the ultimate question ... so what will make you whole again? What are the damages you seek? If the defamatory statement is still being published, the plaintiff can certainly seek a judicial order requiring the statement to be removed from whatever media, or an order requiring the defendant to cease from publishing the statement. However, in most cases, the defamatory statement was said once and has disappeared. In these cases, monetary damages is the only award available. Proving what the damage to your reputation is worth can be very difficult without something solid to lean on, such as a loss of a job due to the statement, failure to obtain a loan or financing, etc. Without some sort of concrete evidence of the harm to your reputation, it may be difficult, if not impossible, to convince a jury to award you any money. And that could make the whole process a waste of time and money.
