Defamation: He should not have said, she should not have said

DEFAMATION

Nothing in this blog post constitutes legal advice. It is posted merely for informational purposes only. For specific instances of defamation, be it libel or slander, the reader is encouraged to seek private legal counsel to whom all of the facts may be divulged. Nothing here gives rise to an attorney-client relationship or privilege.

 

Defamation, also known as libel and slander, is only becoming more prevalent with the advent and ever growing presence of social media. For our purposes, libel and slander will both fall under the umbrella term of defamation.

In short defamation is a false statement said about a particular individual or organization that is said or published to a third party and damages the reputation of that individual or organization in a quantifiable manner. I will break down that last sentence below.

1.      A false statement. A false statement is one that is meant to be purported as true. Satire, opinion, and true statements of fact are not included. For example, back in 1983 the adult magazine “Hustler” printed a full page parody advertisement targeting the conservative pastor Jerry Falwell in which the ad made statements about Falwell’s first sexual experience to be an incestual one involving his mother. For simplicity purposes, I will just say that the Supreme Court held that, as a public figure, Falwell had a heightened standard to meet when it comes to false statements made in public and that the advertisement was intended and understood to be a parody. Thus, Falwell could not collect money damages because the statement, though false, was not meant to be read as true. On the other hand, a private individual, i.e. one that is not a public figure, has a heightened expectation that someone would not publish false statements about them. So, say you are on a social media platform and you notice that someone you know has said something about you that is false. The only thing you have to ask yourself is, “would the people who see this think it is true?” and if so that would meet the first criteria of a false statement. Now on the second criteria.

 

2.      Said about a particular individual or organization. This would seem to be self-explanatory, but it’s not always that simple. Obviously, if an individual is named in the statement, then that would be about that person. But say the post simply said “my co-worker is stealing from my employer.” Whether or not that is being said about an identifiable individual is subject to the circumstances. Do you work in a large retail store like Walmart or Meijer, or do you work at a small shoe store with four employees, two of whom are the owners of the shop? Or perhaps a statement that said, “my cousin who is a nurse in Indiana,” and that person only has one cousin who is a nurse in the State of Indiana. There are countless ways a person may be identified.

As for an organization, a business can be defamed. Recently some companies are taking people to task for posting negative reviews on sites such as Yelp. And that is perfectly legitimate so long as the statements are false (see above), and such a statement could harm the company’s reputation. A factual, negative review, or an opinion about the products or services are not defamatory because an opinion is almost always identifiable as such, and true statements of fact are by definition not false.

3.      Publication to a third party. For the purposes of defamation “publication” can be any means by which a third party receives the false information. Publication can be a post on a social media platform, simply telling another person, sending it in email to another person, publication in a newspaper or on television, sign language or other gestures, putting it up on a billboard, skywriting, or pretty much anything you can think of, so long as it is intentionally made known to a third party, can be determined to be a publication.

4.      Damaging to one’s reputation. This may be the most controversial criteria in defamation. And this is where we get to determine if it is defamation per se, or defamation per quod.

 

Defamation per se, is something said about the subject (i.e. the defamed person) that (a) accuses them of the commission of a crime, (b) alleging that the person has a foul or loathsome disease (read sexually transmitted disease), (c) adversely reflecting on a person’s fitness to conduct their business or trade, or (d) imputes serious sexual misconduct. In each of those four instances it is not necessary to prove that the defamatory statement has caused special damages, it is assumed that the publication of such a statement to a third party is enough to recover against the would-be defendant.

 

Defamation per quod, is something said about the subject that is not defamatory in one of the above four instances, but when heard in context, or with consideration of extrinsic evidence, causes injury to the reputation of the individual. This will mean that a Plaintiff in a defamation per quod case will have to prove that there have been real world damages to the defamed individual.

 

5.      Damages. In the case of defamation per se it is generally held, at least in Indiana (for other jurisdictions please consult that state’s law and/or competent counsel licensed in that jurisdiction), actual damages are not required to be pled. A strong recommendation to the savvy is to always try to allege actual damages to avoid an improperly dismissed case. Indiana is one of the few states left that will not require proof of actual damages, but again, it’s a good idea to do so.

 

As for defamation per quod one must show actual damages. As discussed above, defamation per quod are false statements made that do not, on their own, prove defamatory. For example, you miss a week of work because you were sick in bed with the flu. Someone tells your boss that they saw you singing “twist and shout” on a float during a parade going through your city just like in Ferris Bueller’s Day Off. That person knows that it is a false statement because it was not you singing the song, but that it was in fact Tom Petty singing, a likeness to whom you bear no resemblance in person or voice. However, on the basis of that co-worker’s statement to your boss, you are fired. You have now suffered actual damages based on the false statement published to another person about you that is not defamation per se. You then have to plead and prove that that statement made to your boss was at least a cause of your losing your job, and that it was reasonable to suspect that such a statement made to your boss would result in some negative employment action.

 

            The above analysis will function as a general overview of the concept of a defamation in the State of Indiana, at least from the perspective of a plaintiff. There are defenses to defamation that should be considered if someone has threatened legal action for defamation, and plaintiffs too should consider these defenses before making such a threat.

1.      Truth. Truth always has been and always will be a fool proof defense to a claim for defamation.

2.      Parody or satire. So long as a reasonable person would consider the statement to be parody or satire, it is a viable and strong defense to a claim for defamation. For examples of this think of television shows such as The Daily Show on Comedy Central, Saturday Night Live, and the aforementioned Hustler Magazine article the link to the Supreme Court opinion for which is linked below.

3.      Public Figure. A person who is a public figure has a much lower expectation privacy and as such is much more open to targeting by false statements. For this we have to consider the Actual-malice standard made famous by the case of New York Times v. Sullivan, and my favorite public figure case Gertz v. Robert Welsh Inc. (links below). The Actual-malice standard means that in order for a statement to be defamatory it has to be made with “knowing or reckless disregard for the truth.”

4.      Matter of public concern. This too will apply the actual-malice standard.

5.      Privilege. There are two types of privilege; “Absolute Privilege,” where even if there is actual malice a statement cannot be the basis of a suit. Examples of absolute privilege are statements made in court (though this may give rise to other claims such as malicious prosecution or perjury), statements made in a session of the legislature, statements made between spouses, or statements made during political speeches or debates. The other privilege is “Qualified Privilege.” Qualified Privilege are mostly situational privileges, such as a reporter about a matter of public concern, statements in governmental reports or by lower government officials, statements made in self-defense or in the defense of others. This is not an exhaustive list of privileges, but is only intended for informational purposes.

6.      Opinion. Statements made that are the opinion of the person making the statement are not intended as statements of fact and therefore cannot be false statements of fact.

7.      Statements made in good faith. So long as statements are made in good faith with a reasonable belief that they are true is a defense to some instances of defamation.

8.      Mitigation. While not a complete defense in all cases, mitigation of damages is a way to lessen the exposure to liability, or in the case of a news publication a retraction can eliminate damages, and thus can open the plaintiff up to a dismissal.

 

Nothing in this blog post constitutes legal advice. It is posted merely for informational purposes only. For specific instances of defamation, be it libel or slander, the reader is encouraged to seek private legal counsel to whom all of the facts may be divulged. Nothing here gives rise to an attorney-client relationship or privilege.

 

Links:

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). https://supreme.justia.com/cases/federal/us/485/46/case.html

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). https://supreme.justia.com/cases/federal/us/376/254/case.html

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). https://supreme.justia.com/cases/federal/us/418/323/case.html

See also, Indiana Coe § 34-15-1-1 et. seq.