Do I Need a Lawyer for My Defamation Case?

In a civil defamation case, the burden of proof lies with the plaintiff. And how your case will be treated will depend on whether you are a public or private figure. That's because the Supreme Court decided in a 1964 case that everyday people have a greater expectation of privacy. A public figure could be anyone that is in the public eye, such as actors, politicians, high-ranking government officials, and athletes. Public figures have to prove the defendant acted with malice when publishing the incorrect and harmful statements. Genuine malice means the other party knew the statements were false or didn't care whether they were true or not.

Defamation law attempts to balance two interests. On one side, we as members of society should be able to speak our minds without fear of a lawsuit for expressing our views. This is particularly true when we're talking about politicians and government officials. On the other hand, people should not have their lives ruined by someone's lies. 

An ordinary person has a lower burden of proof and protection because they only need to prove that the harmful and untrue statements were negligent, not published out of malice. Negligence is when some causes harm to another person because they acted in a manner that another reasonable person would not have under the same circumstances. 

To win a defamation lawsuit, you must first prove the defendant made an untrue and defamatory statement that was communicated to a third party or "published." The "statement" can be written, spoken, pictured, or even gestured or signaled. A third party could be a newspaper, social media, a speech, television, radio, even an email. 

The published defamatory statement must be false. No matter how rude, embarrassing, or harmful a statement is, if it is true, then there is no legal recourse. Opinions are not usually considered defamatory because an opinion can't be proved to be objectively false. For example, a food critic saying that they had the worst pasta primavera of their life at XYZ restaurant would not mean they defamed the restaurant. There is no way to prove that their opinion is false. 

Next, the statement has to be injurious. That's the whole point of a defamation lawsuit. The statement caused injury to the plaintiff's reputation, which resulted in the loss of work, harmed relationships with family and friends, or caused the plaintiff to suffer harassment from the media.

Finally, the statement must be unprivileged. Some forms of communication are absolutely privileged. A defamation lawsuit would not be successful if the statement were made in this type of immune setting. Some examples of absolute privilege are:

• During judicial proceedings
• In between spouses
• During political speeches

Most commonly, you will find libelous statements being made on the Internet these days. Here are a few examples:

• On blog posts
• In a blog post's comment section
• In the public comment section of online media such as newspapers and magazines
• Internet chat rooms
• Public video comment sections

Although many websites will screen their public comments for hate speech and illegal content, not all scrub for libelous comments.

Since slander is the oral definition of defamatory statements, these can be made anywhere, and to anyone, there just needs to be a third party. For example, if a coworker tells you to your face that you are a fraud, and it's just the two of you, that would not hold up in a courtroom. However, if they made that statement in front of your boss, and you lose your job because of it, then you have something. Here are a few examples of when and where slanderous statements can be made:

• Speeches
• Board rooms
• Briefings
• Work meetings
• School board meetings

The Internet has changed the way we do many things, and it provides a platform for regular people to have a voice, whether for good or for bad. The Internet of things makes defamation lawsuits far more challenging because you have to be extraordinarily tech-savvy. Working with a law firm that has excellent access to resources becomes critical. Fortunately, at Morgan & Morgan, we are deeply invested in tech. We have lawyers specializing in online defamation cases, plus investigators proficient in using modern technology to face these particular challenges.

When you're the victim of online defamation of character, you may have unique problems to overcome, such as identifying an anonymous defamer. This may require subpoenaing an internet service provider, website, or platform operator to gain access to the anonymous poster’s true identity. It also may require developing relationships with online publishers to remove offensive content or preserve copies of removed content to be used as evidence. 

In a defamation case, you can sue for two kinds of damages: actual damages and non-economic damages. Actual damages are defined as financial losses you suffered and can even include medical bills if the ordeal the defendant subjected you to caused you to seek professional help. It's possible to receive compensations for things like:

• Lost business
• Loss of future business
• Medical bills
• Lost wages
• Loss of employee benefits

Non-economic damages are typically tied to pain and suffering, which can include humiliation, mental anguish, anxiety, stress, loss of sleep, and shame, for example. However, non-economic damages for slander are not available in every state. Some states require that the plaintiff have actual damages also to include non-economic awards. For example, suppose you are retired, and someone slanders you. You feel humiliated, and perhaps some people don't look at you the same way. Since the slander doesn't have any impact on your income, you may not be able to collect for pain and suffering. However, suppose the defendant accused you of having committed a crime or that you have a sexually transmitted disease. In that case, the defamer can be sued for non-economic damages without you having to have been impacted by economic damages. 

Punitive damages may be awarded if the defendant acted with particular malice or other egregious behavior. Punitive damages are means for juries to punish bad behavior and set an example or warning to others.

Remember, it's quite challenging to prove damages when it comes to defamation cases because harm to one's reputation is hard to calculate. Even if you win your case, there is no guarantee you'll be able to collect unless the defendant has assets from which to pay. That's why personal injury attorneys that work on a contingency fee basis will have to evaluate the case before taking it on. If there is no possibility of collecting, it's unlikely you'll be able to secure the services of a no-win, no-fee defamation lawyer.