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  • Eric Foster, Esq.

Defamation: easy to say, harder to prove

Updated: Jun 8

"I WANT TO SUE FOR DEFAMATION!"


I'm sure you've heard someone say that. The problem is, a lot of people say the word "defamation" but they don't know what that really means. What I want to do is provide an overview on what defamation is and what is generally required to prove it in court.


Under Ohio law, defamation is defined as "a false publication that injures a person's reputation, exposes him to public hatred, contempt, ridicule, shame, disgrace, or affects him adversely in his trade or business." In other words, someone spreading harmful lies about you. "Slander" is where someone defames you through spoken words. "Libel" is where someone defames you through written words.


I would venture to guess that most people have been defamed at one point or another in their lives. But as with all things involving the law, it gets complicated when we talk about actually suing someone for it.


To establish a defamation claim in court one has to prove: (1) a false statement, (2) the false statement is defamatory (as I defined earlier), (3) the false statement was published, (4) the plaintiff was injured, and (5) the defendant acted with the required degree of fault.


The first thing you may notice is that there is a requirement that the statement be false. That is because truth is always a defense to defamation. You cannot allege that someone defamed you by telling the truth about you. That is very important.


You may also notice that the statement must be "published." What this means is that the false statement must have been heard or read by a third party. This third party must be someone other than the person making the statement or the person who is the topic of the statement. So if someone tells a lie about you TO YOU, there is no defamation claim because there is no publication of the defamatory statement.


There also must be an injury in order to establish defamation. A person bringing the claim must be able to show that he/she was harmed by the statement. In some instances, a statement is so bad, that injury is presumed. Lawyers call these statements are defamatory "per se." A statement is defamatory per se if, ON ITS FACE, "it reflects upon a person's character in a manner that will cause him to be ridiculed, hated, or held in contempt; or in a manner that will injure him in his trade or profession." In all other instances, a person will have to separately prove damages.


The last requirement is proving that the person who defamed you acted with the required degree of fault. When we talk about the "degree of fault" we are talking about the intentions of the person making the statement. The law requires different intentions to be proven based upon the social status of the person who is the topic of the false statement.


A person who is the topic of the false statement can be classified as a public figure, a limited-purpose public figure, or a private figure. Public figures are generally the people you see often in the media: celebrities and public officials. Limited-purpose figures are generally those who engage in certain actions which invite public opinion or comment. Think of a person who owns a restaurant or a person who speaks publicly on a specific subject. Private figures are everyone else.


Now back to the "degree of fault." For public or limited-purpose public figures, they have to prove that the person making the false statement acted with "actual malice." This means the person either explicitly knew the statement was false or the person acted with a reckless disregard as to whether the statement was true or false. This is a pretty high burden of proof. Private figures must only show that the person making the false statement failed to act reasonably in trying to discover whether the statement was true or not. That is a much lower burden of proof.


In sum, defamation claims are much more complicated than most people understand. The only defense to a defamation claim that I've discussed is truth. There are others such as consent, absolute privilege, qualified privilege, and statute of limitations. Those could be another article all on their own.


If you believe someone has defamed you, it is vital that you discuss this with an attorney as soon as possible. Your chances of successfully making your case in court increase dramatically with an attorney as opposed to doing it by yourself.



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