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Personal Injury Defamation of Character

Defamation of Character

Is Asbestos Harmful?

What is Defamation of Character?

Most people think of personal injury as a physical injury caused by another party. Not all personal injury causes physical harm. There is a form of personal injury that does no physical harm, but can be extremely harmful to a person’s reputation (or "character"). That form of personal injury is called "defamation," which is sometimes known as "defamation of character."

What is defamation?

Defamation is false and unprivileged spoken words or written publication, which exposes any living person to hatred, contempt, ridicule, or which causes him/her to be shunned or avoided, or which has a tendency to injure him/her in his/her trade or occupation.

For example, if a person or the news media says or writes something about you that is understood to lower your reputation, or that keeps people from associating with you, defamation has occurred. However, if someone says something false about someone who has died, as reprehensible as that may be, in most states it is not considered defamatory. No legal action can be taken on behalf of a dead person. Only a living person can be defamed.

What are the elements of a defamation claim?

1. a publication to one other than the person defamed;
2. a false statement of fact;
3. that is understood as
   1. being of and concerning the plaintiff; and
   2. tending to harm the reputation of plaintiff.
4. If the plaintiff is a public figure, he or she must also prove actual malice.

What defenses may be available to someone who is sued for defamation?

There are ordinarily 6 possible defenses available to a defendant who is sued for libel (published defamatory communication.)

1. Truth. This is a complete defense, but may be difficult to prove.

2. Fair comment on a matter of public interest. This defense applies to "opinion" only, as compared to a statement of fact. The defendant usually needs to prove that the opinion is honestly held and the comments were not motivated by actual "malice." (Malice means knowledge of falsity or reckless disregard for the truth of falsity of the defamatory statement.)

3. Privilege. The privilege may be absolute or qualified. Privilege generally exists where the speaker or writer has a duty to communicate to a specific person or persons on a given occasion. In some cases the privilege is qualified and may be lost if the publication is unnecessarily wide or made with malice.

4. Consent. This is rarely available, as plaintiffs will not ordinarily agree to the publication of statements that they find offensive.

5. Innocent dissemination. In some cases a party who has no knowledge of the content of a defamatory statement may use this defense. For example, a mailman who delivers a sealed envelope containing a defamatory statement, is not legally liable for any damages that come about from the statement.

6. Plaintiff's poor reputation. Defendant can mitigate (lessen) damages for a defamatory statement by proving that the plaintiff did not have a good reputation to begin with. Defendant ordinarily can prove plaintiff's poor reputation by calling witnesses with knowledge of the plaintiff's prior reputation relating to the defamatory content.

What are slander and libel?

Slander and libel are two forms of defamation. Slander is a spoken defamation and libel is the written form. However, radio and television broadcasts that are defamatory are considered to be libel, rather than slander, even though the defamation is spoken rather than written.

What is libel per se?

When libel is clear on its face, without the need for any explanatory matter, it is called libel per se. The following are often found to be libelous per se:

A statement that falsely:

• Charges any person with crime, or with having been indicted, convicted, or punished for crime;
• Imputes in him the present existence of an infectious, contagious, or loathsome disease;
• Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects that the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;
• Imputes to him impotence or a want of chastity.

Are insults, critiques and opinions considered defamatory?

Insults and epithets are not normally considered defamatory because they are generally seen as outbursts of emotion, with no real substance except to show intense dislike. A fair critique of a restaurant, movie, TV show, or theater play is also not considered defamatory. However, if the comments or criticism are disparaging enough, they may result in a loss of business or reputation.

Opinions are also not normally considered defamatory because opinions usually don't contain specific facts that can be proven untrue. Merely labeling a statement as your "opinion" does not make it so. Courts look at whether a reasonable reader or listener could understand the statement as asserting a statement of verifiable fact. (A verifiable fact is one capable of being proven true or false.) This is determined in light of the context of the statement. A few courts have said that statements made in the context of an Internet bulletin board or chat room are highly likely to be opinions or hyperbole, but they do look at the remark in context to see if it's likely to be seen as a true, even if controversial, opinion ("I really hate George Lucas' new movie") rather than an assertion of fact dressed up as an opinion ("It's my opinion that Trinity is the hacker who broke into the IRS database").

Are e-mail and on-line activities subject to laws relating to defamation?

Yes, laws relating to defamation are applicable to e-mail and other online activities. For example, if a person commits libel against you through e-mail or other on-line activities, the publisher, and any re-publisher, of the offensive statement can be held accountable for damages. This is why it is wise to be careful about anything you write in an e-mail message or online chat room. If the victim is harmed by your action, you can be held liable for his or her losses.

If you think you've been defamed by false information passed on by a computer channel, or worry about whether you can make an aggressive advertising claim, it might be worth talking to a qualified lawyer.

May someone other than the person who originally made the defamatory statement be legally liable in defamation?

One who "publishes" a defamatory statement may be liable. However, 47 U.S.C. sec. 230 says that online service providers are not publishers of content posted by their users. Section 230 gives most ISPs and message board hosts the discretion to keep postings or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or libelous. Most ISPs and message board hosts also post terms of service that give them the right to delete or not delete messages as they see fit and such terms have generally been held to be enforceable under law.

Can I be sued for defamation of character if I am writing a book based on a true story?

If you place a "disclaimer" at the beginning that the people and events have been changed to protect the innocent, and that any similarities to actual persons, either living or dead, are merely coincidental, it is not considered defamation of character and you can’t be sued. You have the First Amendment, which gives you freedom of speech.

I think I’ve been defamed, how can I prove it?

In order to prove defamation, you have to be able to prove that what was said or written about you was false. If the information is true, or if you consented to publication of the material, you will not have a case. However, you may bring a defamatory action if the comments are so reprehensible and false that they affect your reputation in the community or cast aspersions on you.

What damages can I recover from a defamation of character suit?

If you have been defamed you may seek both actual damages, to recover the harm that you have suffered, and punitive damages to punish the person who made the remark (and serve as an example to deter others).

If the defamation improperly accused you of a crime or reflected on your profession, the court or jury can assess the damages. For other types of defamation you must prove some actual damage to be able to recover.

This article provides general information about defamation of character in the spoken form of slander and the written form of libel. It gives general examples of what could be considered defamatory and what is normally not considered defamatory. It also outlines possible defenses against a slander or libel claim. However, it is not a substitute for qualified legal advice. Consult with a personal injury lawyer that specializes in defamation actions if you feel you’ve been defamed, if you’re facing any form of defamation of character action or have legal questions about this practice area.

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