Defamation (Slander and Libel)

DEFAMATION (SLANDER AND LIBEL)

The act of defamation occurs when a person or entity makes an untrue or inaccurate statement that harms the standing or reputation of another person or entity. A defamatory statement can target a single individual, multiple people or an entire group or organization. What matters when determining whether a communication is defamatory is whether the statement is truthful and causes damage to another’s reputation. The experienced litigation lawyers of Bellatrix PC handle all forms of claims and defenses due to defamatory communications. Our attorneys can address allegations of defamation for businesses, not-for-profit corporations, charitable organizations, and individuals.

 

woman singer overlooking empty theater next to piano

What types of defamation exist?

There are two main types of defamatory conduct recognized by the law: defamation through spoken communication and defamation through written communication. When defamation occurs through oral statements, during a conversation or through a public speech it is typically referred to as slander. In contrast, when defamation is transmitted through the written word — such as a newspaper article, a posting to an online forum, or displayed on a sign — it is considered to be libel. While many people believe that the apparent anonymity of the Internet provides them with a license to speak untruthfully about other people, this is far from the case. In most cases an experienced and knowledgeable investigator or forensics professional can uncover the IP address that was used to make the written statement online. This IP address can then  be used to subpoena your internet service provider (ISP) to force them to turn over the identity that is associated with the IP address.

 

When can a false statement be considered defamatory?

A false  statement can be considered defamatory when certain legally defined characteristics are present. A false statement can be considered defamatory when all of the following are present:

  • An oral or written statement has been made about another person or entity;
  • The statement was transmitted or communicated to a third-party;
  • The statement was made either negligently or with intent to injure;
  • The statement caused harm  to the individual or entity it was targeted at.

A defamatory statement is, by definition, an incorrect statement of fact. For instance the claim that, “Jim stole $300 worth of paper supplies” would likely be considered to be a defamatory statement if it were untrue and communicated to a third party.  It is a factual statement that causes harm to Jim. However, statements that merely express an opinion are not considered defamation. For instance, if a co-worker was to say, “I think Jim’s pranks are childish”, such a statement would merely be expressing the speaker’s opinion. This would not be considered to be defamatory and Jim would be unlikely to have a viable cause of action.

 

When will a statement be considered to have caused damage to a reputation?

A statement is considered to have caused damage to an individual’s reputation if it reduces the perceived standing or worth of the individual in the eyes of others. However the determination as to whether harm was caused is a particularly context-sensitive inquiry. For instance, writings or statements made in a forum where  hyperbole or sarcasm are prevalent would be analyzed under a more forgiving light than official statements or contexts where a non-embellished factual statement would be expected. We can advise your business as to how statements are likely to be perceived in a court.

Put our defamation litigation attorneys to work for your business

If your business is being threatened with a defamation lawsuit, or if your business is a victim of defamation, Bellatrix PC can help. Call us at (800) 449-8992 or contact us online to schedule your confidential legal consultation.

Basics of Defamation, Slander and Libel

angry manHas someone posted a bad review or blog about you or your business?  Are former employees telling your customers that you are a “scam” or that your products and services are poor? You are probably as mad as a bee in a jar about it. Few things can cause such an acute upset like lies being told about you and your business to others. But can you sue? And, more importantly, should you?

Defamation is defined as the communication of a false statement about another person (or business) that harms the victim’s reputation. The false claim can be made to just one person, or to a group of people. It is not the size of the group that matters; it is the lack of truth that results in damaging a person’’s or business’s reputation.  The point is that they are lying about you to others.

Traditionally, the tort of “defamation” was broken down to written defamation (“libel”) and spoken defamation (“slander”). But for modern purposes, this distinction does not matter much, and both types of statements are included in the same tort.  Libel defamation includes lies written on internet websites, blogs, forums, social media, newspapers, books, and magazines.

People who lie on the internet behind cowardly “anonymous” postings cannot hide, however, if the plaintiff is determined enough. It is possible to bring a lawsuit against unknown persons (called Doe defendants) so that the suing attorney can subpoena the website where the anonymous comment was made.  In response to the subpoena, the website will be compelled to reveal the poster’’s name and other information.  Even if all the website can provide is the IP address of the poster, that IP address can further be traced by subpoenas to Internet Service Providers, back to the computer — and the person — who made it.

When is a Statement Considered Defamation?

Here is the most important thing: you cannot sue for defamation unless you can prove that the statement is a false statement of fact.  Truth is an absolute defense to any defamation case, no matter how insulting or embarrassing the statement.

Complicating this are a few other important rules. First, it needs to be a statement of fact, not opinion. The statement must appear to a reasonable person that it is a true and verifiable statement. However, when a person’’s opinion is added into the statement, the dynamic changes. The distinction between factual statements and opinion is nuanced and often turns solely on a judge or jury’s view of the statement. So, for example, the statement “Monsanto is poisoning people” is a statement of fact that may be defamatory if Monsanto chose to sue. By contrast, the statement “I think that Monsanto is bad” is a subjective statement of opinion and not actionable defamation.  But most statements fall into the hybrid where one can reasonably believe the statement is fact based even if couched as an opinion, and is therefore actionable. So, for example, the statement “In my opinion, after looking at the evidence, Monsanto is a bad company that sells poisonous GMOs” is possibly, but not certainly, defamatory.

And it gets even more complicated when topics of public concern are involved. Statements about the government, celebrities and other newsworthy items not only need to be false, but stated maliciously. That means that the speaker has to know that the statement was false, and made it anyway. Monsanto’s GMO supply and their lobbying efforts with the Federal Department of Agriculture, for example, may be enough of a public concern (even though its a private company) that you would have to be maliciously and knowingly lying about it before liability could attach. In purely private matters, the speaker does not have to know the statement was false to be held responsible for it. So a speaker is probably safe from a lawsuit if he calls the President a “war criminal” but not if he calls his neighbor a criminal.

What Qualifies as Damaging a Person’s Reputation?

You cannot sue for a defamatory statement unless it also harms yours or your business’s reputation. That means that it must be published to another person (writing a bunch of defamatory statements in a private diary does not count) and it must lowers the value of the person or business to others or to the public. The victim as the plaintiff will have the burden of proving damage to their reputation, as well as the amount of damages. So, for example, if a customer does not like your service and lies about the facts of your business online, you will have to prove that the review prevented you from getting new business or other opportunities and money.

Statements that portray the victim’’s morality or integrity in a poor light for a false reason is called “defamation per se and the victim does not need to prove anything other than the false statements were published to another.” Defamation per se statements are usually about a person committing a serious crime, having a sexually transmitted disease, lacking ability or integrity in their work or business, committing adultery, or being promiscuous. Calling a business a “scam” or a “rip off” may fall into this category, depending on the facts.

Should You Sue?

While promoting and doing business on the web has its many benefits, it has also unleashed a new level of defamatory content. Disgruntled former employees or customers may post untruths on blogs or message boards as retaliation or simply to vent. But most of the time, defamation lawsuits will just be a lot of money for little recovery as most people do not have assets to cover the harms they are causing. Lawsuits take a long time, too. And you typically cannot sue the website itself because they have protections as a “forum” by Federal law (so your lawsuit against “Rip Off Report” is likely going to be dismissed, even though Rip Off Report won’t remove demonstrably defamatory content unless you pay them a large fee).

Each incident is unique and the harm, your goals, and the practicalities of the situation should be discussed with your lawyer before you file suit. In addition to defamation lawsuits, there are other protections (especially against former employees) and steps that you can take directly with the website to get content removed.  Don’t just run immediately to the courthouse, or you may not get the right result in the end.

How the Supreme Court’s DOMA ruling will affect employers.

DOMA is dead. Well, mostly dead.

DOMA is dead. Well, mostly dead.

Almost exactly two years ago, I wrote a post on how “grossing up” on taxes for benefits given to gay civil union employees could trigger discriminatory pay liability. In that post, I highlighted how Google is providing extra compensation to gay employees in civil unions to make up for the fact that they receive less tax breaks than married heterosexual couples with respect to health insurance benefits. My concern was that making any pay dependent on one’s sexual orientation is a per se violation of the anti-discrimination laws, even if the intent is to ultimately treat homosexual couples equally with heterosexual couples. This was because of the Defense of Marriage Act.

From an employment law standpoint, DOMA is frustrating. On the one hand, it creates a legal class of benefits only allowable for heterosexual couples (specifically, with respect to IRS regulations). On the other hand, and in seeming contradiction, sexual orientation is a protected class and employers can be held liable for discriminating on wages and benefits. (Not surprisingly, everything boils down to the IRS and who gets what as tax breaks. Every time a new law gets passed that affects tax categories, there are sweeping unintended consequences that make it difficult for the average business owner to comply with every duty foisted upon him.)

DOMA really has two parts. 1. Every state is not required to accept the gay marriages of another state, but is free to define marriage how it sees fit. 2. Federal laws and regulations defined marriage as between one man and one woman.

What the Supreme Court did today was strike out that second part. Marriage is now defined individually by each state. And each state does not have to honor the other state with respect to gay marriage (yet… this will certainly beg a “full faith and credit clause” challenge).

So basically, if you are gay and married in a gay marriage state, such as California, you are married for purposes of California law (i.e. adoption, inheritance, property rights) and for purposes of federal law (i.e. federal income taxes). But you are not married for purposes of Missouri law because Missouri has a state constitutional amendment defining marriage as heterosexual marriage only. So a gay couple should not expect to move to Missouri and claim the same rights as a heterosexual couple after being married in California.

This seems complicated. But actually, in my humble opinion, today’s opinion makes things easier for most employers. Why? Well because you no longer have to decide who is married and who is not for purposes of particular state and Federal laws. If somebody is married, then you can now apply all those employment laws in the same way regardless of their sexual orientation. “Married” will mean the same thing under both state and federal law for all your employees. In your role as an employer, you no longer have to ask, and you no longer have to care, about the sexual activities of your employees. I say “hooray!” It’s one less administrative burden.

So what employment laws and policies are affected by married status? Here is a non-exhaustive list:

  • Healthcare and insurance benefit offerings to spouses and families, particularly pre-tax
  • Family medical leaves
  • Bereavement
  • Maternal and paternal leaves
  • Equal pay practices
  • Childcare benefits
  • Hiring practices (this was unchanged by DOMA)

Here’s the upshot: If you’re in a state where gay marriage is legal (like California), then offer the same benefits to all married couples (gay or straight). If you’re in a state where gay marriage is not legal (like Missouri), then offer the same benefits to all married couples (who would, by operation of state law, all be straight). If you’re in a state like Missouri, and you want to offer additional benefits to gay couples, be very careful and talk to your lawyer. As I noted two years ago, making any employment law or pay determinations based solely on sexual orientation, no matter your intentions, is problematic.

Now whether you agree or disagree with your particular state’s gay marriage recognition laws is altogether another question. It certainly should not be a debate for the workplace as an employer. And it certainly will not be uniform across the United States for some time to come (if ever). SCOTUS kicked that can down the road with today’s California Prop 8 ruling. Currently, it is a matter of each state’s preference.

UPDATE: In November 2014, a Missouri state judge ruled that the Missouri ban on gay marriage was unconstitutional. Since this conflicts directly with the state constitution, the law is now unsettled in this state.