Defamation is a claim about damage to one’s reputation.
What is defamation?
Defamation is the publication or communication of a false statement of fact about a person to a third party, which causes harm to the subject-person’s reputation or constitutes defamation per se (more on that below), without privilege or the subject-person’s consent.
Defamation is a very fact-specific claim. Not all statements made, even some that harm another person’s reputation, constitute defamation.
Format – Writing or Verbal
Defamation can be either be published or communicated in writing (called “libel”), or verbally (called “slander”). While both commonly occur in society, “libel” cases are far more common, simply because verbal “slander” is often more difficult to prove.
Content – Facts, not Opinions
The first step in evaluating whether a statement constitutes defamation is to examine the content of the statement itself.
An opinion (e.g., “In my opinion, this restaurant has food that does not taste very good.”) – which is not a fact – is typically not defamation. Most opinion is speech protected by the First Amendment of the United States Constitution. (Defamation is based in state law, which is trumped, or “pre-empted,” by the United States Constitution.)
Content – False Statement, not True Statement
A defamatory statement must be false. Even a statement that may be harmful to one’s reputation, if true, does not constitute defamation.
Who is the injured party?
Higher standards apply to public figures (i.e., celebrities) bringing a defamation claim. Private figures must only prove negligence by the party who published or communicated the statement; however, public figures need to prove “actual malice,” or a reckless disregard for the truth or falsity of the statement (a higher standard than proving negligence).
What is defamation per se?
Defamation per se are certain statements that are deemed so inherently injurious that damages to the subject-person’s reputation are presumed. New York has four categories of statements which constitute defamation per se, including statements charging a person of committing a “serious crime,” and statements which tend to injure a person in the person’s business, trade, or profession.
Statute of Limitations
Defamation claims in New York have a relatively short statute of limitations. Claims must be filed within one year of the publication or communication of the defamatory statement.
If you believe that a false, defamatory statement of fact has been published or communicated about you, please contact an experienced defamation attorney who may be able to help.
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