Why You Need an Experienced Lawyer to Negotiate Your Defamation Claim

Personal Injury

By David Carnes, Staff Writer

Defamation occurs when someone communicates a false statement that harms the reputation of the complaining party. Although a defamation claim does not directly involve physical injury, it is classified as a personal injury claim because it is considered an injury to a person’s reputation. Defamation law is complex and in some aspects arcane.

Elements of a Defamation Claim

The elements of a defamation claim are the same regardless of whether you are sitting in court or at the settlement table. To win your claim you must prove the following four elements:

  • The statement must be published. The statement must have been successfully communicated to a third party. A false statement about you in the defendant’s private diary, for example, cannot support a defamation claim. Defamation can be either spoken (slander) or written (libel).
  • The statement must be false. Unless you qualify as a “public figure”, the defendant does not have to know that the statement is false in order for you to win a defamation claim – a mistaken entry on your credit history might be actionable, for example. Under certain circumstances it could be quite difficult for you to prove that a statement about you is false.
  • The statement must be injurious to your reputation. You must prove that you were damaged by the statement. If you suffered financial losses (such losing your job), you will have to prove them. The worse your reputation was before the defamation occurred, however, the lower your settlement value is likely to be.
  • The statement must have been unprivileged: “Unprivileged” means that the defendant must not have been protected by a legal exception to defamation law. A witness in court, for example, cannot be sued for defamation for uttering a false statement, even if his statement subjects him to criminal liability for perjury.

Possible Defenses

A number of defenses might be available against a defamation claim, depending on the facts of your particular case. Some prominent examples are:

  • The statement was a statement of opinion, not fact: The fact/opinion distinction is an inherently ambiguous area of law. Calling someone an “ignorant fool” is likely to be considered an opinion, while asserting that someone is a narcotics smuggler is likely to be interpreted as a defamatory statement of fact. Between these two extremes, however, lies a gray area that might require significant legal expertise to clarify.
  • The statement is true: Truth is an absolute defense against a defamation claim, no matter how unflattering that truth may be. In a defamation claim, you must prove that it is more likely than not that the statement was true. If the defendant can introduce a 50 percent degree of doubt, you will lose the case whether you are in court or at the settlement table.
  • The statement was directed at a large group of people, not only you. The definition of the word “large” is where lawyers will fight it out if this defense is raised. While a racial slur would almost certainly not be considered defamatory, a defamatory statement about a married couple probably would be considered defamatory even if only one spouse filed a claim. The gray area between these two extremes is what could trip you up at the settlement table.

Negotiating a defamation claim can resemble walking through a minefield, especially if the obvious defendant is an individual who possesses neither wealth nor insurance coverage for defamation (requiring you to search for a “deep pockets” defendant whose liability may be difficult to prove). 

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