There is a fine line between one person's right to free speech, and another's right to defend their good name. Defamation can sometimes be hard to determine precisely because of this. Defamation is a legal term, and libel and slander fall under its umbrella.
Although defamation is a production of English law, the concept existed as far back as Roman days where defamation of character punishment was as severe as death. Other civilizations would punish a defamer by cutting out the tongue. In modern western society, defamation of character punishment is not as extreme. Still, the law does provide an avenue for the victims of defamation to get a measure of satisfaction, if only by making the perpetrator suffer financially.
How is defamation defined?
Defamation is usually defined as a false statement an individual makes about another which is published as a statement of fact. The result of this defaming statement being published as a fact hurts your personal and/or professional standing as a reputable person. It causes you other damages as well, which can include things like financial loss of business and emotional distress.
Suppose someone publishes their poor opinion of you. In that case, it is not automatically considered defamatory unless it's proclaimed as if it were a fact. If someone writes, "I believe that Joe Johnson is a corrupt CEO," that is subject to protected opinion. Our great court system is not designed to inhibit free speech, even when the subject is contentious. Opinions typically fall in the realm of protected speech. In contrast, if the statement written or given is "Joe Johnson is a corrupt CEO," and the statement is absolutely untrue, it may be considered defamation.
What is defamation law?
As stated previously, the rules about who can say what without being accused of defamation of character is a fine line. Written defamation is called "libel," and spoken defamation is considered "slander," and they both fall under "defamation." In the US, defamation is not usually a crime. Instead, it is a "tort" or civil wrong.
Under the law, a person who has been defamed can seek damages from the perpetrator. The goal of defamation law is to bring balance to those wronged. A person's life should not be shattered because a person chose to profess lies about them. Conversely, people should be able to speak their minds freely without fear of a lawsuit because they made a derogatory comment based on their opinion.
Some of the most obvious examples are in politics. Politicians and political commentators would be sued constantly if every exaggeration or differing point of view they shared with their supporters was considered defamation.
What is needed to prove defamation?
Defamation laws vary across the nation from state to state. Yet, there are some common rules across the board. To prove you have been defamed, the statement the defamer made would have to have been:
Publication requirement: The defamer must have published defamatory content about you or your business. The publication can include a wide array of forms such as books, blogs, newspapers, magazines, radio shows, social media posts, podcasts, and more. The courts assume that if a third party can understand the meaning of the statement, it has been published by all intents and purposes.
False requirement: The statement made about you or your business must be objectively untrue. However, if the statement made was true, it cannot be considered defamation, regardless of how harmful it may have been. Even if the statement has some inaccuracies, substantive truth is still considered truth when it comes to defamation under the law. Furthermore, opinion is protected under the First Amendment because it is understood that there is no such thing as a "false idea." When litigating, an opinion can only be defamatory if the person(s) hearing the opinion believes it is based upon fact.
Harmful requirement: The plaintiff in a defamation case must prove harm came to his/her/its reputation due to the defendant's false statements and has resulted in damages. In a civil case, damages is a term that refers to compensation. Depending on the state where the claim is filed, the type of damages may include:
- Compensatory: Compensatory damages are actual losses such as loss of business, lost bonuses, lost clients, or additional expenses from the defamation of character. Additionally, emotional damage or a damaged reputation can be compensated.
- Punitive: Punitive damages may be awarded if the plaintiff can prove the defendant acted with the intention to harm or malice.
- Nominal: Nominal damages are awarded when the plaintiff can prove they were the victim of defamation but can't define the harm they've suffered. Nominal damages are means for the court to recognize the victim's rights were violated.
Unprivileged requirement: In most states, courts will recognize that some forms of communication cannot be considered in a defamation lawsuit because of the setting. Some example settings of privileged communication are judicial proceedings, executive actions, and official proceedings such as a police interview. However, suppose after providing testimony in court, a person makes further comments to the press in the hallway. In that case, those comments could be considered unprivileged and used in a defamation case.
Can you go to jail for defamation of character?
Every state in the US has civil libel statutes that enable victims to sue their defamer. Still, a few have criminal libel laws as well. States that allow for criminal defamation of character punishment are Idaho, Louisiana, Michigan, Minnesota, New Mexico, North Carolina, Oklahoma, Utah, Virginia, Montana, Wisconsin, North Dakota, and New Hampshire.
However, since free speech is a fiercely guarded right, it's difficult to prove these cases as it requires proof beyond a reasonable doubt. Conversely, civil cases have a lower standard of proof. Jail time is typically only imposed in the most egregious types of cases.
The exception to this is true in all states. If you have a restraining order against the defamer or if the defamer is charged with other crimes that are related to you, like online harassment, online stalking, or sextortion, the punishment of actual jail time could be more common.
What can you get for defamation of character?
Each case is unique, and every state has its own laws concerning what type and the amount of damages one can sue for. Financial harm has to be proven, and a dollar amount has to be assigned. Suppose you lost your job as a result of defamation of character. In that case, it's easier to define a dollar amount than, say, a lost business opportunity where it's unknown what kind of fruit that may have borne.
Defamation can sometimes lead to pain and suffering, which can be considered damages. Suppose you have developed depression, anxiety, or insomnia due to the defamation of your character. In that case, it may be possible to be compensated for it.
Below, we'll detail some real-life examples of lawsuits for slander and libel.
- In New Hampshire, a jury awarded $274.5 million in damages to a car dealer, a banker, and a developer who were called criminals by a mortgage company owner in an electronic billboard. The mortgage company owner had no personal dealings with the plaintiffs yet accused them of being guilty of drug dealing and extortion on the billboard.
- Las Vegas casino owner Steve Wynn sued the "Girls Gone Wild" creator Joe Francis for falsely claiming he wanted the man killed because of gambling debt. The casino owner's lawyers were able to prove slander, and that harm came to him and his casino to the tune of a 20 million dollar verdict.
- In Florida, businessman Zahid Ramlawi was awarded $10,000,000 in punitive damages and $175,000 against four defendants who were former business partners. His lawyers were able to prove they spread false and malicious lies about him around the community.
- Photographer Lara Jade Coton won a defamation by implication lawsuit against Televised Visual X-Ography, Inc., distributors and retailers of a porno film called "Body Magic." She had uploaded examples of her photography, including a self-portrait, to a photographer's forum with the intent to sell and receive feedback from peers. One of her photos was used on the packaging of the pornographic film. Still, she had never given permission for her image to be used. She won $100,000.00 for the suffering and humiliation of being associated with the film and the industry.
Is it hard to win a defamation case?
Defamation lawsuits are challenging because they require a lot of fact-finding. It may require experts to testify on your behalf about the psychological and emotional harm you've suffered. Unless your lawyer is working on a contingency basis, it can also be quite costly.
Evidence is critical in all civil cases, so you'll need to be prepared to have proof of published lies. This may be recordings, newspaper or magazine clippings, or any other evidence that has impugned your character. Furthermore, you may need to provide evidence of financial loss. For example, your husband divorced you because someone accused you of having an affair and you had been formerly supported by your husband. Another example is you lost important opportunities in your field because clients no longer trusted you, and any other expenses you incurred because of the defamation.
Of course, you want the best attorney at your side to pursue defamation of character punishment. You must also be prepared for a lengthy trial as these cases don't tend to move along very quickly unless a settlement can be made. At Morgan & Morgan, our personal injury lawyers have a strong reputation for winning for clients, both through settlements and verdicts. If you are a victim of libel or slander, you have a right to pursue defamation of character punishment and be compensated.
You have legal recourse for your injuries through a defamation of character lawsuit. And our lawyers are prepared to guide you through the ever-changing and complex laws no matter what state you live in. Don't hesitate to reach out for a free and private case consultation. We're ready to explain your rights and work hard to build a strong case for you.