Your reputation may be one of the most, if not the most valuable assets to you. False defamatory statements about you or your business and cause serious damage to your work and personal life. It can lead to financial damages, emotional injury, and even threats and physical injury from people who were misled to believe defamatory accusations. In today’s world where defamatory accusations can be easily propagated through a variety of media, including social media, blogs and forums, these claims can come from any source and persist indefinitely. This means the damages can come in swiftly and have a permanent effect on your life if you do not act to defend your reputation.
Defamation, in North Carolina law, is any statement that damages the reputation of another individual or party. There are two types of defamation recognized in North Carolina:
- Libel: False statements in written or digital form.
- Slander: False statements in spoken form.
This is a tricky area of law in the United States as the First Amendment generally allows citizens freedom of speech, though defamation is an exception. This means that if you believe you are the victim of defamatory statements and want to file a lawsuit, you will need the help of an experienced attorney who can build a credible case. The attorneys at Tarlton Polk Law can help you navigate the legal process and build your case against defamatory statements to restore your reputation and receive the compensation you deserve.
Requirements for Defamation
When filing a defamation lawsuit anywhere in the United States, you face a steep burden of proof to show that the statements made against you were not protected under the First Amendment. The elements you need to prove are:
- The statement is false and defamatory
- The statement was published or spoken to some other person or third party,
- That the defamatory statements were published with malicious intent, or at the very least with negligence.
- You experienced damages or harm as a result of the statement.
These requirements exist for good reason – to deter people from filing lawsuits against others for expressing honest criticism or accusations or expressing their opinions. Even with the strict set of elements above there are exceptions where a defamation can be thrown out, such as statements that were made satirically (i.e. using humor, irony and exaggeration to ridicule, expose or criticize others).
Generally, there are two types of defamatory statements a person can make:
Defamatory Per Se
Defamatory Per Se is defamation where the words were inherently damaging. This requires no surrounding context or circumstances for the statement to be understood as defamatory. Examples include statements such as:
- You have an infectious disease.
- You engaged in disreputable business practices.
- You committed a stigmatized sexual act or had an affair.
- You committed a crime.
Defamatory Per Quod
Defamatory Per Quod is defamation when the defamatory character of the statement is not immediately apparent, but there is a broader context to explain its defamatory meaning. The difference between per se and per quod is usually in the phrasing, as most per se statements could be phrase to be per quod, for example:
- A person falsely accuses you of having a sexual relationship with another person. While not defamatory on its own, if the broader context is that you are married to somebody else, thus making the false statement damaging to your relationship and reputation, it would be considered defamatory. A per se version of this statement would involve directly accusing you of having an affair.
How Can I Prove Defamation?
If you are wondering if you have a case for defamation, the best thing you can do is contact an experienced attorney who will carefully review the facts and help you navigate the legal process. As you have four elements to prove to win your case, the defendant can use any or all elements in their defense, arguing that:
The Statement was False
Truth is an absolute defense to defamation; if the statement is true, the case will fail. If you are filing a defamation lawsuit, the burden of proof is on you to show that the defendant was lying. In many cases truth can be one of the more difficult aspects to challenge, as the defendant can continue to insist, they were not lying and even go to great lengths to prove their statements were true.
This can make it seem like you would need an elaborate collection of video and audio recordings to have any hope of proving defamation. While recordings would certainly help your case, there are a variety of ways a skilled attorney can build a case attacking the defendant’s credibility and honesty. This can include testimony from others involved, the plausibility that the defendant discovered the “fact”, and anything they would have to gain from making false statements.
A tricky area with truth in defamation lawsuits is when a statement made against you is partially true. In such cases, it is important to steer the focus on the part of the statement that was false and showing that it was that part that was defamatory and caused damages.
The Statement was not a Matter of Opinion or Satire
A very effective challenge to defamation lawsuits is that the statement was just an opinion or published with the intention to be humorous or satirical and not be accepted as factual. In most cases, the context of how the statement was made and where it was published will play a big role in whether it is ruled defamation. For example, statements published in a labeled opinion piece, comedy, caricature, satirical piece, or anywhere where it is disclosed or otherwise obvious that the statements are not to be interpreted as facts will not be considered defamatory.
Opinion is also a defense for statements that may have the appearance of suggesting certain facts, but even with broader context it does not make a statement of fact. Take the following examples.
The plaintiff is a racist.
Fact-based Defamatory Statement:
The plaintiff is a member of the Ku Klux Klan.
The plaintiff is “creepy”.
Fact-based Defamatory Statement:
The plaintiff has committed an act of sexual battery.
In the above cases, the statements on the left reflect how the defendant may feel about the plaintiff, but are not statements that can be based in any facts. The statements on the right are based on actual facts that can be verified or refuted, and are thus grounds for a defamation lawsuit if the other factors of defamation are proven.
The Statement Caused Harm
Even if the statement was malicious and false, if nobody believed it or payed any mind to it, then you did not really suffer any harm. While “harm” is broad and encompasses emotional, physical and financial damages, it is unlikely that you will have a ruling in your favor for minor distress or a slight injury to your ego. The types of damages stemming from defamatory statements that would be considered valid include:
- Violent threats or actual physical attacks
- Dissolution of personal or business relationships (e.g. divorce, cutting sponsors, employment rejection)
- Significant financial losses resulting from people no longer patronizing your business
It is not enough to simply show that harm was done; you need to connect the harm to the false defamatory statement. For example:
Direct Harm: A client with a reputation for online reviews published a scathing dishonest review about your business. Shortly after the review was published, you experienced a significant drop in customers and found evidence from the community that it was a result of the poor review.
No Connection to Harm: A client published a scathing dishonest review about your business. Your profits did decrease after the review was published, but in an insignificant manner that followed a trend of declining profits for your business within the past 6 months. You did not present any evidence that a significant number of people rejected your business based on the dishonest review.
The Statement was Made Maliciously or Negligently
It is possible that somebody could make a false statement against you that they truly believed in and did not publish without due diligence. This is not as common of a defense strategy because it involves finally admitting that the statement was false and potentially that it caused harm, but you were simply not acting with intent to harm or with carelessness about the harm caused. Typically, this defense would apply to cases where the statement was false, but the defendant was not aware of its falsehood and had reason to believe it was true. Take the following hypothetical example:
The defendant, Alyssa, had published statements accusing plaintiff James of workplace sexual harassment against Alyssa’s friend, Teresa. Alyssa learned of the harassment when Teresa confided in her and Alyssa trusted that Teresa was telling the truth about James. Alyssa published the information on a private Facebook group with a few other women in the workplace with the intent to warn other women to keep their eyes out for James’ behavior. Eventually, Human Resources discovered the group and James was hastily terminated from his position. Over the coming weeks, Teresa felt guilty for James getting terminated, and confessed that he did not do the specific acts she accused him of, but merely felt uncomfortable with his demeanor and grossly exaggerated the story. Now James has filed a defamation lawsuit against Alyssa for publishing the false statements.
While the above case involves a false defamatory statement and actual harm, whether the defendant is truly culpable for defamation would come down to whether James’ lawyers can effectively prove that her actions were negligent.
Request a Consultation with Tarlton | Polk's Defamation Lawyers
If you believe you have a case, the best thing to do is discuss it with an experienced attorney. You will need an attorney who understands this complex area of law and can fight hard for you while also being honest about the viability of your case and what additional information you will need to win. The attorneys at Tarlton Polk Law have the skills and experience in this area of law as we have fought on both sides: in Civil Rights defending clients First Amendment Rights and in Personal Injury defending our client’s reputations. Understanding both sides to these issues gives us a unique advantage in handling these lawsuits in a fair, respectable and honest manner that puts your best interest front and center.