In North Dakota, defamation is a criminal offense, a Class A misdemeanor. This crime is punishable by up to one year in jail and a fine up to $3,000. If the act does not fit the definition of criminal defamation, it is a civil wrong, and the victim can pursue a defamation lawsuit in civil court. If the court decides in the victim’s favor, the defamer may be ordered to pay damages to compensate the victim.
Overview of Defamation Law
Generally, defamation is a statement that an offender makes to a third party that harms a victim’s character or reputation. To prove prima facie (on its face) defamation, the plaintiff must prove four elements. The defendant:
- Made a false statement that they held out to be fact.
- Published or communicated that statement to a third person, not themselves nor the plaintiff.
- Demonstrated some degree of fault, at least on the level of negligence.
- Caused the plaintiff to suffer damages or harm to their reputation.
Two additional elements of defamation may be:
- The plaintiff must prove that they are identified to the third person to whom the defamation was published.
- The statement needs to have a negative effect on the person’s character or reputation.
What Is the Law on Criminal Defamation?
Criminal defamation is defined as willfully publishing defamatory matter, such as a magazine article about the plaintiff, or knowingly arranging the publication, or in any way knowingly aiding or assisting with the publication.
Defamatory matter can be any written or oral communication about a natural person made public with actual malice or reckless disregard of the truth. Actual malice means the defendant knew the statements were false and made the decision to publish them anyway.
A natural person is defined as an individual or a legal or commercial entity. The term does not include a government or government subdivision like an agency.
Libel and Slander Distinction
Defamation comes in two forms, libel and slander. Libel is a false and unprivileged publication that involves writing. Slander is a false and unprivileged publication that involves oral and/or visual communication. Libel can be accomplished by a writing, printing, picture, effigy or other fixed representation to the eye that exposes a person to hatred or ridicule or injures them in their occupation.
The main types of slander are those that:
- Charge a person with a crime or with having been indicted, convicted or punished for a crime.
- State that the person has a present infectious, contagious or loathsome disease, such as a sexually transmitted disease.
- Tend directly to injure the person in respect to their office, profession, trade or business, either by stating the person is generally disqualified to do the work the office or occupation requires or by imputing something with reference to the office or occupation that will have a natural tendency to lessen the victim's profits.
- State that the person is impotent or unchaste.
- Natural consequence of the statement causes actual damage.
Defenses to Defamation Action
A defendant has several defenses to a charge of making defamatory statements, including:
- Truth: The statements the defendant made were not falsities.
- Consent: The plaintiff consented to the defendant’s publication of the statements, regardless of whether the statements were true or false.
- Privilege: The defendant had the privilege to communicate the statement to a third person.
- Statute of limitations: Charges not brought within two years from the date of the false and defamatory statement.
Definition of Privileged Communications
A privileged communication is one that the defamer had a right to make to another person. Categories of privileged communications include:
- Communication made in the proper discharge of an official duty, such as a police officer relaying information about a suspect to the chief of police.
- Communication made in a legislative or judicial proceeding or in any other proceeding authorized by law, such as a court hearing in a personal injury case.
- A communication made without malice to an interested person by one who is also interested or who stands in such relation to the interested person so as to afford a reasonable ground for supposing the motive for the communication to be innocent; or one who is requested by the person interested to give the information.
- The communication was a fair and true report, without malice of a judicial, legislative or other public official proceeding or of anything said in the course thereof.
In the last two cases, malice is not inferred from the communication or publication.
Proving Defamation Damages
In a civil defamation of character lawsuit, the plaintiff must prove different categories of financial damages. These include compensatory damages, or actual damages, of two types:
- Special damages to reimburse the plaintiff for actual losses.
- General damages to reimburse the plaintiff for emotional distress and harm to their reputation.
A victim of defamation may also argue that they are owed nominal damages, reimbursement for a minimal amount to certify that a wrong has occurred, even if no actual damages were proven; and exemplary damages, known as punitive damages, to punish wrongful actions.
Request for Correction or Clarification
A plaintiff may institute an action for the tort of defamation only if they have made a timely and adequate request for correction or clarification from the defendant or the defendant has made a correction or clarification. “Timely” is defined as being made within two years of publication of the defamatory statements.
If a person has knowledge of the publication within 90 days of it being made and fails to make a good faith attempt to request a correction or clarification, they can only recover provable economic loss. In order to be adequate, a request for correction or clarification must:
- Be made in writing.
- Specify with particularity the statement that is alleged to be false and defamatory, as well as the time and place of publication.
- Allege the defamatory meaning of the statement.
- Specify the circumstances giving rise to any defamatory meaning of the statement arising from other than the express language of the publication.
- State that the alleged defamatory meaning of the statement is false.
If the plaintiff has not made an adequate request, service of a summons and complaint stating a claim for relief of defamation and containing the information required above constitutes an adequate request.
- North Dakota Century Code: Section 12.1-15-01 Criminal defamation
- North Dakota Century Code: Section 12.1-32-01 Classification of offenses, penalties
- North Dakota Century Code: Section 14-02 Personal Rights
- North Dakota Century Code: Section 28-01-18 Actions Having Two-year Limitations
- North Dakota Century Code: Section 32-43 Uniform Correction or Clarification of Defamation Act
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.