traverselegal - November 2, 2011 - Defamation Law, Proving a Defamatory Statement
Welcome to Defamation Law Radio. Internet defamation of character is as easy to perpetuate as a blog post, Facebook update, rating submission, or a forum comment. Your online reputation is measured by the website’s return as Google search results. Do you know what people are saying and writing about you?
Welcome to Defamation Law Radio. My name is Internet Law Attorney Enrico Schaefer. I specialize in Internet Defamation. That is, defamation that occurs online, on the World Wide Web, and, of course, we all know defamation involves both libel and slander. Libel is written defamation and, of course, slander is spoken defamation. In the internet space, it means this. If a statement is written on a website, it’s potentially libel. If it’s on a YouTube video or another video or audio, then it is spoken, and it may be slander.
There are several elements of defamation. Generally, you have to prove as a plaintiff that a defamatory statement was made, that’s the first element. The second element is that you have to prove that that statement was published to third parties, that’s the second element. And the third element is that you have to prove as a plaintiff that the publisher (the defendant) knew or should have known that the statement that they made which harmed the reputation was false. So, those are the three general elements.
A defamatory statement really deals with this critical element, in defamation law, of reputation. A statement that is made about someone may be defamatory if it tends to injure the plaintiff’s reputation. Reputation is everything. So, what kinds of words harm a plaintiff’s reputation under defamation law? Well, if a reasonable person would hear the statement and expose the plaintiff to hatred or ridicule or degradation or contempt by hearing or reading the statement, then it may, in fact, tend to injure the plaintiff’s reputation. So, a statement can be defamatory when a reasonable person, listening to the statement in the case of slander or reading the statement in a case of libel, would think less of the plaintiff.
Now, there is an exception to that under defamation law, and in many states, there’s something called defamation per se. These are certain types of defamatory statements that are considered to harm the plaintiff’s reputation as a matter of law. So, in that case, you don’t have to meet the first element of proving that the statement tends to harm the reputation of the plaintiff.
So, what is defamation per se under defamation law? Defamation per se in most states deals with allegations, assertions, and statements about the plaintiff that allege sexual misconduct, criminal behavior, that the plaintiff is afflicted with a loathsome disease, that, in fact, the person’s business reputation is, in fact, not good. So, these types of things can be considered as defamation per se.
Let’s talk a little bit about a situation where you don’t have defamation per se where the defendant has allegedly made a statement, that the plaintiff is going to try and prove harms their reputation. So, let’s talk about what kinds of things will tend to result in injury to reputation.
Well, In order to recover any sort of damages for mental anguish or loss of business or these types of things, you’re going to need to prove that a false statement, a defamatory statement, was made which injures the person’s reputation in a relevant community. And when you get into this reputation issue, you’re automatically putting plaintiff in the spotlight, right? Because now the question becomes: what is the plaintiff’s reputation before the alleged defamatory statement was published on the internet? The plaintiff’s reputation is at the center of the case. If the plaintiff has a really great reputation, then proving harm to that reputation by a statement is going to be easier than if the plaintiff haves a bad reputation already. Therefore, every plaintiff should know if they are going to file a lawsuit alleging defamation on the internet – or defamation of character in some other forum – they have to understand that they are putting everything about themselves, in terms of their reputation and character, into play as relevant evidence. There’s this notion of particular plaintiffs who have such a poor reputation that, in fact, there’s no way to defame them because they’re so notoriously bad anyway. And there’s the notion of a libel-proof plaintiff, where the plaintiff’s reputation is so bad that there’s no way for them to show harm to reputation. Now, most courts handle that in a way that simply goes to weight and credibility, and it don’t automatically throw out bad character plaintiffs out of court because their reputations are already provably bad. For instance, they’ve been in jail for 20 years on allegations of bribery, these types of things. So, even though a plaintiff’s reputation may be really, really poor, there’s still a possibly of bringing a claim. It just makes it harder to prove damages.
So, that is what I really wanted to convey today. This concept of defamation involves reputation. Every plaintiff needs to have their defamation attorney analyze the reputation issue before stepping into court, and before sending a threat letter. That means, that the plaintiff’s attorney who is handling the defamation claim needs to analyze the reputation in the community of the plaintiff as part of the initial assessment of the matter, so that the plaintiff, the client, understands how difficult it is going to be or how easy it is going to be to prove this very first element, this very first hurdle that they’re going to have to get over of proving their defamatory statement.
Next time we’ll be talking about publishing to third parties, this is typically not much of a hurdle. In a later show, we’ll be talking about proving that a statement is, in fact, a false statement.
That’s all today for Defamation Law Radio. My name is Enrico Schaefer. I am a defamation law and internet law attorney, and we will talk to you next time.
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