Defamation is when someone tells one or more persons an untruth about you, and that untruth harms your reputation. Defamation is the general term, while slander and libel refer to particular types of defamation. Libel is a written defamation, and slander is verbal. There are three key factors to consider when deciding whether a defamatory statement should be taken to court.
1. The defamatory statement must be a lie.
Often, we confuse every negative comment about us with defamation. Unfortunately, not all negative statements are defamation. As Americans, we have a right to free speech that applies not just to statements about the government, but also about each other. That right of free speech is not without limit, though. When someone communicates, either in writing or verbally, a statement that is not true about you they step beyond the bounds of their right to free speech and may be subject to civil liability to you.
What about statements of opinion, though? After all, they are not exactly facts or necessarily untrue if it is the person's opinion, but they can be negative and hurtful. So on which side of the equation do opinions lie? Well, as it turns out, the answer is both. If the opinion is a legitimate one, then it is protected free speech. If the opinion is outrageous or designed solely to harm the reputation of the person the opinion is purportedly about, it can be defamation. Confusing, right? The only way to know for sure is to talk to a qualified, experienced attorney in your jurisdiction.
2. There must be actual harm.
So often, people who have been defamed are more angry than actually injured. For example, if your neighbor John starts telling everyone that you eat kittens, you might be hurt, but unless anyone actually believes him, you have no harm. Indeed, even if your wacky neighbor Agnes, the crazy cat lady, believes John and thinks that is why some of her cats have gone missing so she starts shooting you dirty looks as you walk by but takes no other action, you still probably have not really been injured. After all, how would you quantify your injury for a dirty look from the crazy cat lady? Did you lose business? Were you fired from your job? Did you have a nervous breakdown or a heart attack? Probably not. So in those instances you would not have suffered any harm and would not have a case.
But, what if John starts telling people you are a domestic abuser who beats his wife? What if he makes a website with your personal information on it right beside his allegations? What if it costs your company business, your boss decides to let you go, and you end up having so much stress from the untrue statements that you suffer a heart attack? Those are actual injuries that can be addressed and quantified in a lawsuit for slander or libel.
3. You need evidence.
A person can slander another person all day long, but unless those who witness the slander are willing to testify or the slanderous statements were recorded, it becomes a “he said/she said” situation. Obviously, things in writing are easier to preserve for trial but will not be entirely useful unless there is information regarding who wrote the statement. When possible, video and audio recordings of the person making the statements, screen shots of the person's social networking site displaying the statements, and signed letters on the person's letterhead are solid options for evidence, so record them and keep them someplace safe.
So, now that we know what defamation is and what you will need for trial, how do you deal with the consequences? You need an action plan and access to some useful resources:
1. Calm down.
Before running off and taking action in anger, walk away from the situation for an hour or two (or better yet, a day or two) and make sure you are calm before continuing. Remember, lawsuits can get expensive, and the cool off time will allow you to reflect on what occurred and whether you actually have a case.
2. Call a lawyer.
Pull together all of the evidence you can find together, including names of witnesses and copies of any written statements. Then, find a lawyer who handles defamation, libel, and slander cases. Personal injury attorneys are often likely to do some of this work, or those who specialize in other forms of civil litigation. Your lawyer will likely want to write a letter to the defamer and insist that the slander/libel cease and desist. Your attorney will want to specify that the source of statements is known, how it is known, that the defamer knew that the statements were lies before saying or posting them, and that the source has a very small window of time (usually only a day to a week) to retract the statements and, if in writing, replace it with a statement that the removed statements were false. An apology may be a part of the retraction, as well, but do not expect much. Of course, if the defamer refuses to comply, the attorney can take legal action on your behalf, inform the website administrators of what has occurred, and take other steps to start rectifying the situation from a legal standpoint.
3. Consult a reputation management expert.
In some instances you will need a way to get defamatory content off the internet or, at the very least, buried under so much positive news about you that only the most intrepid souls will dig deep enough to find it. To do that, you may need the assistance of a reputation management expert. There are a number of services available online that specialize in creating new content about you, making take down requests to sites posting negative content, and taking other steps to control your online reputation. This may be overkill in some instances, but if the defamatory comments are still on the internet and are preventing you from getting a job, a new client, a significant other, or whatever the situation is, then a reputation management expert may be the way to go. They also may be able to interface with your attorney, documenting all of the different instances of defamatory material they find for later use at trial.
Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.
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