WHAT IS DEFAMATION? Defamation is written or spoken communication to a third party in which as a result of that statement you have suffered damages. Libel is written, while slander is oral.
HOW DO I PROVE IT? There are five elements in addition to damages which plaintiff must prove by clear and convincing evidence in order to prevail in this case. These five elements are:
(1) a defamatory statement of fact concerning the plaintiff;
(2) Which was either written or spoken;
(3) with actual knowledge by the defendant that the statement was false or with reckless disregard by the defendant of the statement’s truth or falsity.
(4) which was communicated to a person or persons other than the plaintiff, and
(5) resulted in damages to Plaintiffs reputation.
(1) A defamatory statement of fact
A defamatory statement is a statement of fact which is injurious to the reputation of the plaintiff, or which exposes him/her to hatred, contempt or ridicule, or to a loss of the good will and confidence felt toward him/her by others, or which has a tendency to injure him/her in his/her trade or business.
(2) A defamatory statement was made either in writing or spoken;
What is a defamatory statement? A defamatory statement has been held to be one which causes harm to one’s reputation. Other forms of defamatory statements are those called “defamation pre se” which essentially means that a statement was made about another relating to allegations of serious sexual misconduct; allegations of serious criminal misbehavior; or allegations that a person is afflicted with a loathsome disease (such as a venereal diseases).
(3) The defendant knew or should have known that the communication was false
Defamation allows recovery for unfair damage to reputation. How false is false? The test is whether the alleged defamatory statement as a whole is true or false. Minor inaccuracies are not subject to defamation claims if the overall substance of the statement is true. "The plaintiff cannot succeed in meeting the burden of proving falsity by showing that only that the statement is not literally true in every detail. If the statement is true in substance, inaccuracies of expression or detail are immaterial.
(4) The Statement was published to third persons
Defamatory statements must be communicated to someone other than you; and specifically to a third party. You cannot defame someone by speaking to them alone, or by muttering to yourself. This element of defamation is virtually always satisfied when claims are made against newspapers and broadcast media.
(5) What Constitutes Injury to Reputation and What are my Damages?
The plaintiff must establish proof of damage to reputation in order to recover any damages for mental anguish; If an individual's reputation cannot be further damaged, a defamation suit serves no purpose, wastes judicial resources, and hinders First Amendment interests. Usually if the statement results to injure your reputation and expose you to public hatred, contempt, ridicule, or degradation, causes the plaintiff to lose the goodwill/confidence of others; tends to injure the plaintiff in his/her trade or business.. But it is always your burden to prove that the statement damages your reputation.
Damages. Damages can be determined and recovered by seeking both compensatory and punitive damages. Compensatory damages are being sought to recover money for the injury done to plaintiff's reputation caused by the defamatory statement and for recovery of the money value of his/her loss(es). Punitive damages are being sought to punish the defendant for the wrongful act by the imposition of further award of damages to the plaintiff over and above the amount of your loss(es).
