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October 25, 2022 | GeneralLitigationNew York

Can I Sue for Defamation?

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Andrew Ramstad

Associate Attorney

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 to prove defamation?

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

  1. There must be a false statement of fact about you or your business. If the defendant’s statement is true or is 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. And, as a result, there was some harm done to you or your business’s reputation – 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 if the statement was privileged.  Privilege may apply if the defendant made the statement in the context of participating in a public function; was exercising a legal or moral duty to make the statement; or was making a “fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.”

Depending on your state, defamation claims must also increasingly overcome the “Anti-SLAPP” defense, which protects defendants against baseless claims brought to discourage speech made on topics of public interest.  Anti-SLAPP is addressed in more detail later in this article.

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

What potential damages can be recovered 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 the likelihood of maximizing your damages 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 resulting from the defendant’s defamation.  These damages are intended to return the plaintiff to a position that he or she was at before the defamation occurred.  It falls into two categories: special or general damages.  Special damages are for losses or injuries to your property, business, occupation or profession.  To recover special damages, you must have quantifiable economic harm, such as a loss of customers or income.  Meanwhile, general damages compensate for shame, hurt feelings, embarrassment or similar pain and suffering.  A jury or judge determines the general damages award amount after weighing all the facts.

Nominal damages are not usually intended to compensate a victim for actual economic losses, but rather are awarded to demonstrate that the plaintiff’s legal rights were violated.  If awarded, nominal damages are typically small monetary awards, which are granted 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 are becoming more and more common.  More than 30 states, including New York and California, have adopted Anti-SLAPP statutes.  Anti-SLAPP laws allow defendants to challenge the basis of the suit, and if a lawsuit is determined to be a SLAPP suit, defendants will obtain a relatively quick dismissal.  This entitles defendants to seek recovery of their attorney’s fees and other costs from the party that originally brought the 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, meaning “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 to display coastal erosion.  Streisand sued the photographer for invasion of privacy, among other things, in response to the photo’s publication.  Rather than vindicate Streisand’s right to privacy, the media attention that quickly surrounded the public lawsuit shined a spotlight on the photo.  Before the lawsuit was filed, the photo was only downloaded approximately six times.  After the lawsuit, it was downloaded over four hundred thousand 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.  Contact a member of our team for more information.

Photo by John Schnobrich on Unsplash

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