Sticks and Stones and Defamation

We’ve all heard the phrase, “sticks and stones may break my bones but words will never hurt me.”  That isn’t the case when it comes to defamation under the law.  Defamation is proven when the defendant (1) publishes a statement, either orally or in writing to at least one third person (2) that is false, and (3) not subject to any privilege (4) made with the requisite degree of fault and (5) plaintiff was harmed as a result.

Though the tort of defamation is clearly defined and well established in case law, it is very hard to recover under in practice. Judges and juries are often hesitant to award plaintiff’s large amounts of money on their defamation claims, largely because they don’t want to ever have a chilling effect on free speech. Plaintiffs often struggle to show actual damages in defamation cases, which further hinders recovery.

When plaintiffs allege can defamation per se however, they are usually more successful.  Defamation per se occurs when the defendant’s statements have accused plaintiff of committing a crime, having a loathsome disease, or in women, alleging a promiscuous lifestyle.  Damages are presumed in these cases and plaintiff often recovers more.  It is also more difficult to recover under a claim for slander, which is oral defamation rather than libel, which is written just by the nature of the claims and the difficulty in proving fault and ownership of the defamatory statements. Some defamation cases can cause damages in excess of six figures, depending on the disclosure and the harm caused to the plaintiff.  Plaintiff’s who are not public figures, and thus have already placed themselves in a public light also have a higher chance of recovery, though damages are not usually as high because less damage has been done to their reputation in the public eye.

Defamation by newspapers and magazines, where the information is rapidly and widely disseminated often cause more harm and end up paying plaintiff’s more, after considering freedom of speech and publication concerns, than private citizens. When deciding whether or not you have a case for defamation to pursue, plaintiff’s should consider how the defendant’s statements actually harmed them, whether it is the form of lost wages, reputation in the community, emotional distress or any other kind of harm, and how they can prove that to a judge or jury.

Additionally, a lot of statements, even if harmful, are protected by privilege.  Privileges include governmental employee immunity, judicial proceedings, and statements that are matters of public concern. If the statement was made maliciously, outside the scope of employment, or absent a reasonable purpose, the plaintiff’s case is further strengthened. While defamation can be difficult to prove and recover damages under, it is a well-established area of law and plaintiff’s do often succeed in their claims.