Can anyone here enlighten me about the standards of proof required in order to show that a) someone has committed libel and b) that the injured party’s reputation has been damaged? How extreme does an accusation need to be for the defamation to be considered libel per se?
I can provide some specifics if necessary, but would prefer not to have to say too much, if you understand what I mean. Thanks in advance.
You should consult a lawyer in your jurisdiction about the standards for defamation (libel is published, slander is spoken). It really does differ widely from place to place. And it really depends on what was said, how, and about who.
I practice in this area in California, but I won’t discuss details in a chat room. And if you are not in California, don’t email me at: daniel_white@msn.com because you need a lawyer familiar with your jurisdiction.
DPWhite:
Maybe you can answer this (as I think this holds true regardless of location).
I thought one of the criteria for defamation was you had to show damages. Defamation is a civil suit and not a criminal one so even if you could prove defamation of character (i.e. Fillet calls Whack-a-Mole a jerk) there isn’t much point in suing unless it provably caused damage (i.e. Whack-a-Mole needs a psychiatrist now because he’s really upset by Fillet’s comment).
I hadn’t thought it would be quite so variable, DPWhite; no wonder everything I found on the web was rather vague.
This is not about me, by the way. (Really!) I’m not asking that anyone provide specific advice as to how to proceed; I was just wondering what the commonly accepted levels of proof are for defamation (how does one show that a person made remarks with malicious intent, for example, rather than out of ignorance) and damages (how can you prove that your business has suffered because people now believe that you really do have cloven hooves instead of feet, when no one’s actually told you that’s why they don’t call anymore).
For the record: Person making the statements resides in NJ, and is an associate of one party to a lawsuit (not a named participant in the lawsuit). Statements include (but are not limited to) out-of-context and altered excerpts of depositions and private emails posted on Internet message boards and to listserves. They appear to be an attempt to damage the reputation of a professional witness for the opposing party of the lawsuit.
Thanks.
IANAL and your jurisdiction may differ. Consult an attorney in your home state for an exact answer.
In Wisconsin, defamation is both a criminal and a civil offense. Wis. Stat. s 942.01 makes it a class A misdemeanor to “with intent to defame communicate any defamatory matter to a third person without the consent of the person defamed…” Defamatory matter is defined as “anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other’s business or occupation.” If the statement is factually true, there is no defamation as a matter of law.
In criminal matters the standard of proof is “beyond a reasonable doubt.” In civil matters the standard is “preponderance of the evidence.”
Damages are a question of fact for the jury in civil cases only. Damages aren’t awarded in criminal cases. The plaintiff in a civil suit would have to prove by a preponderance of the evidence both that the defendant defamed him or her and that an injury resulted to collect compensatory damages. As punitive damages are intended to punish the defendant, I don’t believe that a showing of damages is necessarily required to be awarded punitives.
This again will probably depend on the jurisdiction and are questions of fact for a jury to decide.
Is there a difference in law between my saying:
I think Usama bin Laden is a prick. (Statement of opinion which I assume is protected under free speech)
and
Usama bin Laden is a prick. (Statement of fact)
Both statements are statements of opinion. The latter is an indication of your opinion of his character.
A statement of fact would be: “Osama bin Laden is a murderer.”
Guys, it is very jurisdicition and fact dependent. I cannot tell you anything that would be useful in your state, unless that state happens to be California.
So here is some California law: we have defamation per se, which means you say something nasty about someone’s professional abilities or criminal proclivities (and a couple of other things.) Under California law, you are presumed to have damages in this cases. In a non per se case, such as Bob never donates to charity, you have to prove damages. I don’t take those cases.
Now, suppose I say that Bob is a bank robber, and not a very good one at that. Well, I am liable to Bob for accusing him of being a criminal, and he need not prove damages. Moreover, I’ve accused Bob of being bad at his chosen profession, so again I am liable. In response to Bob’s suit, I say, well, what I said is true! If I can prove that Bob is a bad bank robber, I win. (I probably win if I can prove he is a good bank robber, unless the jury hates me and loves Bob, but you get the point.)
There is a whole body of federal law related to the first amendment that protects people from suits brought by public officials and figures in varying degrees, but as a practical matter, I don’t find it comes into play in my practice because I am never dealing with public figures.
Malice in non-public figure cases is proven by the context in which it is used: it can be inferred from the statement itself. I love Bob dearly, but he is a bank robber and a bad one at that is tricky. Bob may be someone I care about. What were my reasons for believing it to be true. Making the statement with an inadequate basis is grounds for malice. Each state’s common law probably specifies a number of ways to infer malice.
As for our NJ situation, you need to talk to an NJ lawyer, preferably one who specializes in defamation. It is a weird area of the law, so don’t trust a the judgment of somebody who hasn’t completed a few defamation cases. The burdens of proof are sidewise and backwards from other cases as both a practical matter and sometimes a legal one. To top it off, you have another lawsuit going on, so your side’s top lawyer needs to know what is going on and whether your expert bringing suit will help his case or hurt it. I thought this was a weird situation, but then, I have just such a case going on now with a defamed expert. In my case, it helps the case in chief.
I appreciate the information and the caveats, DPWhite et al. Thanks for weighing in.
I hope the attorneys here are still around…
In defamation I thought the statement made could be false or erroneous but as long as the speaker (or writer) had reason to believe it was true they were safe anyway. I thought it was this sort of thing that protects the National Enquirer and other rags. Blatant disregard for the truth is a term banging around in my head right now but I don’t know if it applies here as well as absence of malice. Are these relevant terms in defamation cases?
Again, IANAL (oh, how I love my paralegal code of ethics which requires me to state that I’m not an attorney every time a legal question comes my way). The situation you describe is defamation of a public figure and there are different rules which apply. New York Times v Sullivan 376 US 254 (1964) is the seminal case. SCOTUS in regards to libels of political figures stated that defendants were constitutionally protected unless the plaintiff could show by “clear and convincing evidence” that the defendant had acted out of “actual malice,” defined as publication with knowledge of falsehood on in “reckless disregard” for the veracity of a statement. Other cases have expanded and contracted what libels must be proved to what standard and who must meet that standard. Generally, “public figures” have to offer proof that meets the above conditions.
Again, consult an attorney licensed to practice in the appropriate jurisdiction.
Well, going with the gist of this thread, consult with an attorney.
In general though, in order for defamation to occur, it must be intentional (not an accident), and it must be to a person (a building cannot be defamed). In addition, it usually must be told, or conveyed somehow, to a third person.
If Bill says to Jim that he is a homosexual, that is not defamation. However, if Bill tells Mary that Jim is a homosexual, defamation has occured. Now, of course, the gray area arises when Jim says he is entitled to damages.
It is often difficult to determine what damages you are entitled to. Compensatory? Punitive? Nominal? Reliance? This is where you consult with your attorney, however, the court will have the ultimate say.
In some states, and Illinois was one (I don’t know if it still is - I now live in SC - and I don’t even practice so all I can say is what I learned in law school), even truth is not a complete defense if made with actual malice. So, in those states, the statement could even be true. That would not be the general rule.
If the statement need be false for the action to lie (such as no actual malice or in the majority of states), then it is incumbent upon the party to verify its veracity.
Although that truth is always a good defense (in every state) in cases about public figures, because the special Sullivan rules are part of federal constitutional law, and federal law trumps state law when they conflict.
As for damages, at common law (the original British law from which most U.S. & Canadian law is descended) you needed to prove actual damages from defamation unless you could show defamation per se, namely that the statement claimed that the victim was guilty of a crime of moral turpitude, cast aspersions on the victim’s professional competence, claimed that the victim suffered from a loathsome disease (read: venereal disease), or imputed that a woman was unchaste. The idea being that any statement of this nature, if false, was without doubt damaging to the victim’s reputation. Nowadays, many states have added to or limited what can be defamation per se.
Again, please consult with an attorney in the relevant jurisdiction. As said elsewhere, defamation is particularly hincky and you need to speak with someone who’s familiar with your local law.
–Cliffy,
law-school graduate