What Is Defamation Per Se?
The tort of defamation (or defamation of character) occurs with false statements, either spoken ("slander") or written ("libel"). False statement of fact injures a person's reputation. The First Amendment does not protect these statements. Some types of false statements are so damaging that they are defamatory on their face — "defamation per se." Defamation per se differs from "defamation per quod," where the court must look at the statement's context. Because defamation law divides offenses into libel and slander, the law recognizes instances of slander per se and libel per se.
The law presumes that defamation per se statements are harmful. In defamation per quod cases, the plaintiff must prove the statement caused damages. Most but not all states recognize the distinction between these two types of defamation.
The following is a summary of the tort of defamation per se. Be sure to check the applicable law in your jurisdiction. Consult with a defamation lawyer before moving forward with your defamation claim.
False Statements That Constitute Defamation Per Se
There are four main ways to classify false statements that the law presumes to be harmful to a person's reputation. Generally, if the statement does not fit into one of the four categories, the plaintiff must prove their actual damages.
Here are the four categories of defamation per se:
- Saying that someone committed a crime or immoral conduct
- Saying that someone had a contagious, infectious, or "loathsome" disease
- Saying someone engaged in sexual misconduct or was unchaste
- Saying something harmful about someone's business, trade, or profession
Defamation Per Se Examples
For example, in an Alaska Supreme Court defamation case, a woman accused a man of assault, battery, and false imprisonment. He sued her for defamation. The court said that because the accusations implied he committed serious crimes, the man did not have to prove they harmed his reputation. The court presumed it did and affirmed his jury award.
In another case, a doctor sent a letter saying another doctor was a liar. That doctor sued. The Texas Supreme Court concluded that the statement did not hurt the doctor's professional reputation. It ruled that the doctor had to prove that he had suffered damages because of the statement.
Although most states more or less adhere to these four categories, the precise definition and the rules surrounding this specific form of defamation vary by state, so it's essential to check the law in your jurisdiction. Consulting with a personal injury attorney specializing in libel and slander cases can help you understand the relevant law.
Standard of Proof in Defamation Lawsuits
When a plaintiff files a civil lawsuit for defamation, they generally do not have to prove that the actor knew the statement was false when they made it. But if the victim is a public official or a public figure, the standard is higher. To prevail in their case, a public figure plaintiff must prove that the defendant acted with "actual malice." This means the wrongful party either knew the statement was wrong or acted with "reckless disregard" for the truth.
Defamation Per Se: Types of Damages
Depending on the facts of your case, the court may award you the following damages in defamation per se cases:
- Nominal damages: Damages awarded for defamation where the plaintiff does not have to prove harm to reputation (typically, a low amount, like $1).
- General damages: Compensatory damages for the past and future harm to the plaintiff's reputation. These damages also include personal humiliation and mental or emotional anguish.
- Special damages: The compensatory damages for specific economic loss caused by the defamatory statement (e.g., loss of profits and job loss, etc.)
- Exemplary or punitive damages: More damages to punish the defendant for extremely outrageous conduct or deter others from doing the same
In a defamation per se suit, you do not need to show how the statement hurt you because the damages are presumed. But offering evidence of how the information harmed your reputation is helpful. Otherwise, the court will only award nominal damages. But you may want to recover more. In that case, you can provide evidence of your harm, such as actual damages, compensatory damages, and emotional distress.
Truth Is an Absolute Defense to Defamation
Remember that truth is always a defense to defamation. And that includes defamation per se. This means the defendant loses if the plaintiff establishes the statement is true. The statement may hurt the plaintiff's reputation, but as long as the statement is true, the lawsuit fails.
Statute of Limitations for Defamation Per Se
Defamation plaintiffs have a short period in which to file a lawsuit. States vary on that time under a "statute of limitations." The statute of limitations clock starts running when the statement is published. For instance, someone posted on social media that you stole money from your clients. The statute of limitations would begin at the time of the post.
Get Professional Legal Help With Your Defamation Per Se Claim
If someone has written or said something false that hurts you, it could destroy your career, end your marriage, and do other serious harm. An attorney can offer sensible legal advice and help you understand your rights. Check FindLaw's directory of defamation attorneys to find one near you.
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