24 Feb When can I have a defamation case?
We have all heard of defamation lawsuits where someone is claiming that their good names and reputation has been “ruined” by another. In this article we will discuss how to know whether or not you have a defamation case against another.
It is very easy to get bogged down in the technicalities of defamation and where they have derived from. But in the interest of time I’ll spare everyone those extensive details of getting into the first amendment issues.
In general, defamation is defined as a false and defamatory statement concerning the Plaintiff which is unprivileged and is conveyed to a third party that could result to some type of harm in some cases. Defamation has been divided into three different categories which we will go over. In order to find out if you have a claim or not, we first need to determine which category you, as the person who is claiming to have been defamed (plaintiff), fit in. For ease, the following chart can be used for reference:
|Type of Plaintiff||Fault Required||Damages||BOP (Burden of Proof)|
|Public Official |
|Actual Malice: |
Knowledge of falsity; or
Reckless disregard as to truth or falsity.
|Presumed damages |
Punitive damages if facts allow
|Clear and convincing|
Matter of public concern
|Negligence as to truth or falsity of statement (You must prove falsity);|
Actual malice possible
|Based upon negligence: Actual injury|
Presumed compensatory damages and punitive damages for malice
|Private Person |
Matter of private concern
|Perhaps the negligence/falsity standard||Presumed and punitive damages absent showing of actual malice||Preponderance|
So, the question becomes do we need to have any economic harm to be able to have a claim for defamation? The answer is that it really depends. Please refer to the table below.
|Per se||(1) Imputing to another a crime punishable by law; |
(2) Charging a person with having some contagious disorder or with being guilty of some debasing act that may exclude the person from society;
(3) Making charges against another in reference to his or her trade, office, or profession, calculated to injure the person in that regard.
|Plaintiff may recover general damages without a showing of special damages.|
|Per quod||Uttering any disparaging words productive of special damages which flow naturally from the disparaging words.||Must prove that Plaintiff has sustained special damages. These special damages must be the loss of money or some other material temporal advantage capable of being assessed in monetary value.|
- Defamation per se: words recognized as injurious on their face, without the aid of extrinsic proof, are actionable per se.
- Defamation per quod: If the defamatory character of the words does not appear on their face, but only become defamatory by the aid of extrinsic facts or innuendo, they are defamatory per quod.
- Actual Injury: impairment of reputation and standing int he community, personal humiliation, and mental anguish and suffering.
- Malice: can be shown by circumstantial evidence showing for example, that the story was:
- So inherently improbable that only a reckless man would have put it in circulation; or
- Based whole on a source that the defendant had obvious reasons to doubt, such as an unverified anonymous telephone call.
- Public Official: Person holding public office.
- Public Figure:
- General Purpose Public Figure: the plaintiff is a celebrity whose name is a household word and whose ideas and actions the public in fact follows with great interest.
- Limited Purpose Public Figure: More commonly, an individual voluntarily becomes involved or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.
Some Examples: The dean of a state college has been labeled a public figure in the context of a dispute arising out of the dean’s tenure. A candidate for public office is a public figure for purposes of a defamation action. However, the director of a property owners’ association was deemed not to be a public figure even though the director had been elected by the property owners’ association.
Additionally, even a single interview given to the media may be sufficient to establish a defamation Plaintiff as a limited purpose public figure.
- Clear and Convincing Evidence: A firm belief that the allegations are true. It’s more than Preponderance of evidence but less than Beyond a Reasonable Doubt in criminal cases. In Civil cases, this is the ultimate burden of proof and the hardest that the Plaintiff needs to meet.
- Preponderance of Evidence: Greater weight of evidence. Generally, it’s more than 50%.
HOW TO DETERMINE WHETHER SOMEONE IS A PUBLIC FIGURE?
- Define the public controversy;
- Examine the plaintiff’s involvement in the controversy; and
- Determine whether the alleged defamation related to the plaintiff’s participation in the controversy.
- Public Controversy: an issue that generates discussion, debate and dissent in the relevant community. It must be more than merely newsworthy, and does not include an essentially private concern such as divorce. Rather, matter is a public controversy if it will affect people who do not directly participate in it.
- Negligence: plaintiff must show that the defendant failed to exercise ordinary care.
- Public concern: speech that relates to political, social, or other concern to the community.
- Compensatory damages: Award given to Plaintiff for compensation of damages, to replace what was lost and nothing more.
- Punitive damages: the purpose is to punish the defendant for their egregious conduct so they don’t do what they have done EVER again.
- Private Person: A private figure is one who has not sought out the public spotlight—nor had it shone on them unwillingly.
IS THE PLAINTIFF REQUIRED TO REQUEST A RETRACTION BEFORE SUBMITTING THEIR CLAIM OF DEFAMATION LAWSUIT?
In short, if punitive damages are sought, then you have to request a retraction at least 7 days before filing a lawsuit.
WHAT IS PRIVILEGED COMMUNICATION?
- Statements made in good faith in the performance of a public duty.
- Statements made in good faith in the performance of a legal or moral private duty.
- Statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.
- Statements made in good faith as part of an act in furtherance of the right of free speech or the right to petition government or a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern as defined by O.C.G.A. § 9-11-11.1(c).
- Fair and honest reports of the proceedings of legislative or judicial bodies.
- Fair and honest reports of court proceedings.
- Comments of course, fairly made, on the circumstances of a case in which he or she is involved and on the conduct of the parties in connection with that case.
- Truthful reports of information received from any arresting officer or police authorities.
- Comments on the acts of public men or public women in their public capacity.
STATUTE OF LIMITATIONS
One year. This limitation period begins to run when the defamatory statement is uttered or published. An action must be brought within one year from the date of the alleged defamatory acts regardless of whether plaintiff had knowledge of the acts at the time of their occurrence.