Being the victim of defamation can be very stressful. It can harm your reputation and negatively impact your business. As you research defamation law online, you might notice that it is quite tricky. An introductory glance into the complexities of defamation law in New York can help you understand defamation a little bit better.
What is defamation?
In a nutshell, defamation is the publication or communication of a false statement of fact about a person to a third-party, which causes harm to the person’s reputation. It can be in writing (which is called libel), or it can appear in the form of verbal communication (which is called slander).
What do I do if I think I am being defamed?
In New York, you are required to specify the particular words used. Courts typically also require you to state when, where and how the words were spoken or written, and to whom the statement was made. Therefore, if you believe you have been defamed, it is imperative to gather as much evidence as possible. Screenshot the materials at issue (if applicable), make note of the exact time and place the statement was made, and create a narrative or a timeline of events that could help you explain exactly what happened. You will want to be able to give the most detailed explanation possible and back it up with proof where you can.
If the statement (or statements) is printed somewhere or posted online, a good first step might be to ask the person or company to take down the materials and issue an apology or retraction. However, if you are unsure about what you should do, or if they ignored your request, you may wish to speak to an experienced defamation lawyer to talk about your legal options.
How can I prove defamation?
When a defamation claim is brought to court, the party asserting defamation must prove:
that there was a false statement;
the statement was published to a third-party without authorization or privilege (more on “privilege” below);
the person being accused was at fault; and
as a result, there was some harm done to the accusing party – or the statement constituted defamation per se (we will get to this too). Dillon v. City of NY, 261 A.D.2d 34, 38 (1st Dept. 1999).
The first step in proving defamation is determining whether the statement at issue was a statement of fact, or merely an opinion. An statement of opinion, typically, is not considered defamation and is protected by speaker’s First Amendment rights. It is equally important to note that defamation is a false statement of fact. If the statement is true, it does not constitute defamation.
Keep in mind that the statute of limitations in New York for filing a defamation claim is one year. However, the clock may reset on the limitation when a defamatory statement is republished somewhere else or to a new audience.
Defamation per se applies to certain categories of statements, where New York courts may not require proof of harm or damage done to you. These four categories are:
A statement accusing you of a serious crime;
A statement that tends to injure your trade, business or profession;
A statement that you have a loathsome disease; and
A statement imputing unchastity on you, if you are a woman. SeeLiberman v. Gelstein, 80 N.Y.2d 429, 435 (1992).
What are defenses to defamation?
If you have initiated a defamation lawsuit, the person you are accusing may fight back with arguments of their own. Here are just some of the defenses that could come up in litigation:
TRUTH: As previously mentioned, there is no defamation if the statement is true. The accused party may attempt to show that there was truth behind what they said.
OPINION: Also mentioned above – an opinion is not defamation. If the accused party said something that could be construed as just an opinion, he will probably assert this defense in court.
ABSOLUTE PRIVILEGE: In certain cases, a statement may be protected by an absolute privilege, even if it is defamatory. This usually applies to statements made in legislative or judicial proceedings, and in certain cases, statements made by public officials.
QUALIFIED PRIVILEGE: A qualified privilege often applies to statements made by a person who is performing some kind of moral, legal or social duty, and the audience has a common interest in hearing the statements. For example, a member of a local town board making the statement at a town meeting.
FAIR REPORT: An otherwise defamatory statement may be protected where the statement is being published in legislative, judicial or other governmental reports.
LACK OF HARM: Except where defamation per se applies, an accused party may defend themselves by claiming that no actual harm was done to the person claiming defamation.
CONSENT: If the accused party can prove that she had consent to make the statement, then it is possible that the defamation claim will be unsuccessful.
In November 2020, New York expanded its free speech protections through a new anti-SLAPP law. The statute seeks to deter lawsuits against parties who speak out on an issue of public interest when the purpose of the suit is to discourage individuals from exercising their First Amendment rights. Both sides should pay careful attention to
Sometimes when parties have a dispute, one of them may seek to record the other person to obtain evidence relevant to the disagreement. However, federal and state laws vary as to the legality of recording a person without their consent. For instance, states like Florida are much more restrictive than New York and New Jersey.
Recording a conversation is easy these days – but not a simple matter. Cellphones have recording capabilities and there is a wide array of electronic devices for recording available for purchase. Using these features can raise legal concerns, particularly in Florida which has stricter privacy laws than most states. If you do not understand the
