Is It Worth Suing for Defamation? - Romano Law

Is It Worth Suing for Defamation?

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Is It Worth Suing for Defamation?

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Defamation claims are based on the facts and circumstances surrounding a published false statement of fact.  If there is a true case of defamation, and you or your business were damaged as a result, then those damages can be compensable through a successful civil lawsuit.  However, not all disparaging statements result in liability and claims can be difficult to prove.  Before bringing a lawsuit, you should weigh the costs and benefits to determine whether it is worth suing for defamation.

How Do You Prove Defamation?

In order to prevail in a lawsuit, you must prove all the elements of a defamation claim.

  1. There must be a false statement of fact about your or your business. If the defendant’s statement is true or expressing an opinion, there is no defamation.
  2. The false statement was published to a third party.
  3. The person being accused was at fault and made the false statement negligently, recklessly, or intentionally.
  4. As a result, there was some harm done to you or your business – or the false statement constitutes defamation per se.

You must provide evidence that the statement damaged your reputation. However, there is an exception for defamation per se, which applies to certain statements that are deemed so inherently injurious that damages to the subject-person’s reputation are presumed.

Defamation does not apply if you consented to the defendant’s statement, or the statement was privileged.  Privilege may apply if the defendant made the statement in the context of participating in a public function; exercising a legal or moral duty to make the statement; or making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”

Notably, defamation can be either published or communicated in writing (called “libel”) or verbally (called “slander”).

What Potential Damages Can You Recover for Defamation?

Identifying and calculating damages depends heavily on the facts and circumstances of your particular case.  While you may feel entitled to recover a significant amount of money simply for harm to your reputation, generally, the more evidence you have of financial injury, the higher your likely damage award.  In addition, your award may vary depending on the type of defamation involved, whether you are a public or private figure, and whether the defamatory statement is related to a matter of private or public concern.

There are three types of damages for defamation claims: compensatory damages, nominal damages, and punitive damages.

Compensatory damages are awarded to compensate for actual harm resulted from the defendant’s defamation.  It falls into two categories: special or general damages.  These damages are intended to return the plaintiff to a position that he or she was at before the defamation occurred.

  • Special damages are for losses or injuries to your property, business, occupation, or profession. To recover, you must have quantifiable economic harm, such as lost customers, damage to your business or profession, or loss of income or wages.
  • General damages compensate for your loss of reputation, shame, hurt feelings, embarrassment and similar harm. A jury or judge determines the award amount after weighing all the facts.

Nominal damages are not usually intended to compensate a victim for actual economic losses but awarded to demonstrate that the plaintiff’s legal rights were violated.   Nominal damages, if awarded, are typically small monetary awards to vindicate your good name.

Punitive damages are intended to punish the defendant and deter them from repeating the defamation.   A court or jury could award punitive damages in egregious cases where the plaintiff demonstrates that the defendant engaged in malicious, wanton or willful misconduct.

Are There Any Other Considerations to Bringing an Action for Defamation?

Bringing a defamation claim may have unintended consequences so it is important to understand how the defendant or the public may respond to your suit.

For instance, if a defendant can show that you brought a baseless lawsuit against them because he or she criticized you regarding an issue of public interest, you could be liable under Anti-SLAPP (Strategic Lawsuits Against Public Participation) laws.  Anti-SLAPP laws allow defendants to challenge the basis of the suit, obtain a relatively quick dismissal and seek recovery of their attorney’s fees and other costs if your lawsuit is determined to be a SLAPP suit.

If you are a public figure, you should also be aware that you have a heightened burden of proof for defamation.  Public figures cannot recover damages for defamation without proving that a statement was made with actual malice—defined as “with knowledge that it was false or with reckless disregard of whether it was false or not.”

Finally, a defamation lawsuit may result in giving a defamatory statement more attention than it would have gotten if you had not sued (known as the Streisand Effect).  This in turn could cause additional harm to your reputation.  For example, in 2003, a picture of Barbra Streisand’s beachfront home was published on the internet as a part of a public project which displayed coastal erosion.  In response, Streisand sued the photographer for invasion of privacy (among other things).  The media attention surrounding the public lawsuit shone a spotlight on the photo.  Before the lawsuit was filed, the photo was only downloaded approximately six (6) times.  After the lawsuit, it was downloaded over four hundred thousand (400,000) times and the Streisand Effect (i.e., a failed attempt to suppress or stop something and instead shining a public light on the issue) was born.

Before you file a lawsuit, consult an experienced attorney who can help you evaluate the pros and cons and determine whether it is worth suing for defamation.

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This Blog is made available by Romano Law PLLC for general informational and educational purposes only, not to provide specific legal advice. By using this Blog you understand that there is no attorney client relationship between you and Romano Law PLLC or any individual contributor. You should consult a licensed professional attorney for individual advice regarding your own situation.

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