How to File a Defamation Lawsuit

definition of defamation
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A defamation lawsuit is a civil lawsuit, which an individual can file on their own or with the help of a private attorney. The term defamation refers to the act of damaging someone’s reputation without having a privilege to do so. A party can damage another party’s reputation by libel, which is a written statement, or slander, a spoken statement. The term defamation of character is another way of referring to the tort of defamation.

Elements of Defamation

Typically, in order to prove defamation, the party bringing the defamation of character lawsuit, the plaintiff, must prove four elements to the court:

  1. Defendant made a false statement that they held out as a fact.
  2. There was a publication of that statement to a third party.
  3. Defendant’s fault reaches to at least the level of negligence.
  4. Plaintiff suffered damages.

A plaintiff cannot recover damages when the statement made by the defendant is true. A plaintiff has the burden of proof to demonstrate that they have suffered damages for the court to rule in their favor; they cannot simply be upset that the defendant made a statement they didn't like.

Types of Defamation: Libel and Slander

Libel can be made with a writing, printing, picture, effigy or another fixed visual representation. A digital writing like an email or blog or social media post counts as a writing. To qualify as libel, the publication must expose a person who is the subject of the statement to hatred, contempt, ridicule or obloquy. (Obloquy means strong public criticism or verbal abuse that causes the plaintiff to be shunned or avoided.) Libel may also be a publication that has a tends to injure a person in their occupation.

Slander is made with an oral utterance, which includes communications by radio and any mechanical or other oral means. An act of slander may untruthfully charge a person with having committed a crime or say they were indicted, convicted or punished for a crime. Slander may impute that the person has the present existence of an infectious, contagious or loathsome disease, such as the novel coronavirus or syphilis.

It may tend to directly injure them in respect to their office, profession, trade or business by saying that the person is generally disqualified or impute that the person negatively affects the business’ profits. It may also impute to the person impotence or a want of chastity, or simply be a statement that by natural consequences causes actual damage.

Examples of Damages in Defamation Law

A plaintiff can initiate a defamation case when they are entitled to receive damages for lost earnings, the capacity to earn money in the future, and for lost business or economic opportunities they have suffered or will suffer because of the defamatory statement. A plaintiff can recover for medical or mental health treatment necessary to recover from the defamatory communications. A plaintiff may also be eligible to recover for pain and suffering, such as emotional distress and loss of enjoyment of life. Non-economic damages can include damage to a person’s standing in the community.

Absolute Defenses to a Defamation Claim

A defendant can assert a number of defenses to defamation, which will defeat the plaintiff’s case. Common defenses include truth – what the defendant said was true and so does not paint a false picture of the plaintiff. Another defense is that the defamatory statement was a statement of opinion, such as, “They’re not worth your time.”

If the plaintiff consented to the publication of the defamatory statement, such as saying, “Go ahead and send the email calling me a thief,” or if the defendant retracted the defamatory statement, such as a newspaper publishing a retraction notice of a statement that said the plaintiff was a thief was inaccurate, are also possible defenses to the charge of defamation. Another defense is that a defendant had absolute privilege or qualified privilege to make the statement.

Absolute and Qualified Privilege

Absolute privilege equates to a total right to make a statement. A person has absolute privilege during judicial proceedings, in talks with high government or public officials, if they are legislators engaging in legislative debates, during political broadcasts or speeches, and between spouses. For example, a husband may tell his wife that he thinks a friend is a thief. The husband would have absolute privilege to make this statement of fact to his wife.

Qualified privilege is when a person may have some right, but not an absolute right, to make the statement. A person may have qualified privilege if they made a statement in a governmental report of an official proceeding; were a citizen testifying during a legislative proceeding; made a statement in self-defense; made a statement in the public interest to warn others about a potential harm; or published a book or film review that constituted fair criticism. There are numerous other circumstances when a private individual might have a qualified privilege to make a statement that might make them the subject of a slander lawsuit.

Plaintiffs should check the relevant statute on qualified privilege to learn if the defendant may have had that qualified privilege. If the defendant had qualified privilege to make the statement, then the plaintiff must prove the defendant acted intentionally, recklessly, or with malice, hatred, spite, ill will or resentment.

Standing in a Defamation Lawsuit

The plaintiff should first determine whether they have standing to file a defamation lawsuit. Standing means that the person has been directly affected by the legal matter that concerns the false statement. A person or a business can engage in defamation. Standing involves being damaged or disadvantaged.

For example, if a boss made an untrue statement that an employee was a thief, and the employee’s other employer fired them based on that statement, the employee would have suffered a loss of employment based on the defamation.

Plaintiff Must Be a Natural Person

A plaintiff must be a natural person or a legal entity to file a lawsuit. More than one person can be a party in a lawsuit. A corporation, business partnership, nonprofit or group of people are natural persons and also can be parties in a lawsuit. The government can be a party in a lawsuit, as well.

A group of people can be parties in a class-action lawsuit. When there is a group of people with similar interests who want to file as plaintiffs, the group must convince the court that they have enough aspects in common such that the court would consider them a class. The group can then file a class-action lawsuit.

Plaintiff Must Have Legal Capacity

A person must take on the responsibility of being a party to a lawsuit, so anyone with a legal disability, like being a minor, cannot file or handle matters regarding a lawsuit themselves. They must work through a legal representative, such as a parent, guardian, trustee or executor. Parties that have a legal disability include children under 18 and people who are judged mentally incompetent because of illness, age or infirmity.

Parties to Be Sued in a Defamation Suit

The plaintiff must determine who they are going to sue. They need to have the party’s correct legal name, and if the party uses another name, or alias, they should include the alias as well. The plaintiff also needs the defendant’s address.

If the defendant is a business, the plaintiff must learn whether the business is a sole proprietorship or partnership, corporation or limited partnership. The plaintiff should sue a sole proprietor using the name of the person who runs the business and sue a corporation by filing against the corporation using its legal name. The plaintiff can serve the corporation’s agent for service of process or a corporate officer with the lawsuit. A plaintiff can also sue a limited partnership by filing against the limited partnership using its legal name and serving either the limited partnership’s agent or its general or managing partner.