by Jay Girvin, Esq., Girvin & Ferlazzo. P.C., Albany, New York
- What is necessary to establish a claim for defamation?
The old saying that “sticks and stones may break my bones, but words will never hurt me” is not entirely true. Untrue and disparaging words can and often do cause injury — ranging from hurt feelings and other emotional distress to actual economic injury. Defamation is a long-recognized common law tort claim by which the responsible party may be held legally liable in damages for injury to reputation caused by false statements that disparage another person’s character.
The rules regarding liability for defamation in particular circumstances are somewhat complicated, and may vary depending on whether the defamed individual is a public or private figure, whether the subject of the statement involved a matter of public or private concern, and the actual content of statement at issue. These circumstances will dictate the degree of culpability the plaintiff must establish to win the case, and whether proof of “special damages” (i.e., provable economic injury) must be shown. Many of the rules regarding defamation actions come from a line of U.S. Supreme Court cases that held that the right to free speech guaranteed under the First Amendment to the U.S. Constitution limits the extent to which states may impose civil liability for speech relating to matters of public concern, even if the statements are factually untrue.
While a full discussion of the law regarding defamation is not possible here, there are a few basic legal principles to keep in mind. First, in order to be actionable as defamation, an oral statement (referred to as “slander”) or a written statement (referred to as “libel”) has to be defamatory in nature. A statement is defamatory if it exposes the person who is the subject of the statement to public hatred, contempt, ridicule, or disgrace, or discredits the person in the conduct of his or her occupation or profession. Not every unflattering or unpleasant statement, however offensive, is necessarily defamatory — the issue is whether the statement would be understood by the average person as being defamatory in nature. The defamatory nature of the statement also depends on contemporary public opinion, which can change over time. For example, it used to be considered defamatory to falsely state that a person was homosexual or bi-sexual. As public acceptance of alternative sexual orientations has grown over the years, however, most courts no longer consider such statements to be defamatory.
Second, in order to be actionable, a defamatory statement needs to be a statement of fact, and not a statement of mere opinion. Statements of fact are capable of being proven to be either true or false, while statements of opinion are not. Falsely stating that a person stole $10,000 from his or her employer is a statement of fact. Stating that a person is “ugly,” however, would be considered a non-actionable statement of opinion. It can often be difficult to distinguish between statements of fact and statements of opinion.
Third, the statement needs to be false. A person cannot be held liable for making truthful, though defamatory, statements about another person. Depending on the circumstances, the plaintiff sometimes bears the burden of proving that a defamatory statement was false, while at other times the defendant may bear the burden of proving that the statement was true.
Fourth, the defamatory statement needs to be “published,” or communicated, to at least one third party. It is not enough that a false and defamatory statement is made to the person who is the subject of the statement. Remember, it is the impact of the defamatory statement in the mind of the public regarding the subject’s character or reputation that creates the injury; therefore, the defamatory statement must be communicated to at least other person who is not the subject of the statement.
Fifth, the plaintiff must be able to prove that the defendant, in fact, was the author or source of the defamatory statement. While in many cases the “publisher” of the statement will be apparent, in other situations it may be difficult to prove the identity of the author, even if there are strong suspicions that the defendant was the culprit. For example, it may be challenging to prove the source of statements posted anonymously or under an assumed screen name on the Internet.
Sixth and finally, in some circumstances it may be necessary for a plaintiff to prove that he or she suffered actual financial loss as a result of the defamatory statement — for example, termination from a job, a loss of customers, etc. In such cases, the plaintiff must show that the economic loss was directly attributable to the defamatory statement, as opposed to any independent or coincidental factors.
Unlike other legal claims that are subject to longer periods of time in which to file suit, claims for defamation are governed by a short one-year statute of limitations.