Defamation is the general idea under the law that one may be held liable for the publication of a false statement of fact. Under the law of most states, defamation is separated into two separate types. The first is what’s called defamation per quod and the second is what’s called defamation per se.

 Play Show: Defamation Per Quod vs. Defamation Per Se

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Hello. You are listening to Defamation Law Radio, brought to you by Traverse Legal PLC. I am Attorney John Di Giacomo, and I want to talk to you a little bit today about the distinction between defamation per se, and defamation per quod.

What is Defamation?

Defamation is the general idea under the law that one may be held liable for the publication of a false statement of fact. Under the law of most states, defamation is separated into two separate types. The first is what’s called defamation per quod and the second is what’s called defamation per se. (keep reading below videos).

Video Series: What Your Defamation Attorney Should Tell You Before You Do Anything Else.

I’ll start with defamation per quod. The general cause of action for defamation requires a plaintiff to show that a person has made a false and defamatory statement concerning the plaintiff, that the statement is an unprivileged publication to a third party. That the defendant is responsible for a fault that amounts at least to negligence on the part of the defendant and that there is either actionability of the statement irrespective of special harm, meaning that someone has proven that damages exist. Or there is the existence of special harm, which is caused by the publication.

And that last element, actionability without harm or actionability with special harm is the distinction under the law that I’m drawing here today, which is called defamation per quod and defamation per se. And when I talk about defamation, I’m speaking of both libel and slander, which at the common law related to either oral statements or to written statements, but for modern purposes, slander and libel have been combined into the general category of defamation.

So, defamation per quod is this idea that you may only be held liable for defamation if the plaintiff proves actual damages. In distinction, defamation per se relates to very specific types of publicized statements that are essentially said to cause such great harm to the party that the statements concern that we treat them differently under the law.

There are four categories of common law that those types of statements fall into:

1. The first is the imputation of criminal conduct. So, for example, if a party states that you have been convicted of a crime, they may be held liable for defamation per se.
2. The second category is allegations injurious to another in their trade, business or profession. If someone tries to injure you in your profession, say, for example, they accuse you of medical malpractice when, in fact, you are not liable for medical malpractice, then those types of statements may rise to the level of defamation per se.
3. The third category is the imputation of a lonesome disease. A lonesome disease typically is something like an STD, leprosy, or something along the lines of contagious, or very detrimental to the rest of society. This category goes back to olden days when, in fact, people may have had syphilis or spread other types of diseases.
4. That also related to the fourth and final category, which is the imputation of unchastity in a woman. In common law, statements about the sexual unchastity of a woman were seen to be so harmful that they would constitute defamation per se.

So, What does defamation per se mean?

It means that a plaintiff’s inability to prove damages is not fatal to the claim of defamation. That is because the idea of presumed damages, which means that special damages are presumed by the nature of the content of the comment itself.

These special damages are special damages that are not actual damages. They’re not damages that are provable because of a specific loss, but they are damages that yet flow out of the claim, for example, lost sales or loss of clients. And these aren’t lost sales that are quantifiable or lost clients that are quantifiable, but these are future lost sales and future lost clients.

So, the basic premise is, if the statement in question falls within one of the four categories, imputations of criminal conduct, allegations injurious to another in their trade, business or profession, imputations of a lonesome disease, or imputations of unchastity in a woman, then the statement probably rises to the level of defamation per se and actual damages do not have to be proven. If the statement does not fall within one of these four categories, then it’s likely that you will have to prove actual damages at trial.

I hope this radio show has been helpful to you to understand the distinction between per se vs per quod. If you have any internet law or defamation related questions, do not hesitate to contact me at Traverse Legal. This has been a Traverse Legal Radio broadcast.

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