Trade Libel

A good reputation is significant for the success of a small business. For this reason, negative comments from a customer or another company can be very detrimental to your business. Depending on the circumstances, you may be able to file a trade libel claim against the person or business that made the comments about your business.

Trade libel falls under the general umbrella of defamation. It involves defamatory statements about the quality of a business's services or products.

This article provides a basic definition of defamation and reviews the elements a plaintiff must prove to win a trade libel lawsuit.

What Is Defamation?

Defamation is a type of tort that occurs when a person makes false statements that are damaging to a party's reputation. Defamation can come in two forms: libel and slander. Generally, a defamatory statement is libel when written and slander when spoken.

Whether it is libel or slander, there are essential elements that a plaintiff must show to be successful in a defamation claim:

• A person published a statement.
• The statement was not true.
• The statement caused an injury to the plaintiff.
• The statement was not in a privileged category.

This is the general definition of defamation. Each state may have variations on the elements of a defamation claim. It's essential to check the laws of your particular state.

It's important to note that "published" doesn't necessarily mean written in a magazine or book. It simply means someone made the statement to a third party.

When these false statements concern a business, it's referred to as "trade libel." Both defamation and trade libel fall under the broader category of tort law, which deals with civil wrongs that result in harm or injury.

Elements of Trade Libel

Trade libel, also called "commercial disparagement," is business defamation. The elements of a trade libel case are very similar to those of general defamation cases, but there are some differences. The elements of a trade libel case are as follows:

• False Statements: The basis of a trade libel claim lies in the false statements made about the business. These statements appear as facts, not opinions.
• Financial Loss: The false statements must directly result in financial damage to the business. This is a crucial element, as proving a causal link between the statements and the financial loss can be complex.
• Disparagement: Trade libel involves disparaging statements that impact the business's reputation.
• Actual Malice: If the business is a public figure, it might be necessary to prove that the false statement was made with "actual malice." Actual malice is where the false statement was made with knowledge of its falsity or reckless disregard for the truth.

It's essential to break down the elements further to understand what constitutes trade libel.

First of all, the statement in question must be false. If the statement is true, that provides an absolute defense to the trade libel case.

Also, the statement must be a statement of fact, not an opinion. The definition of publishing is the same as a general defamation claim.

Finally, the plaintiff must show that their business suffered monetary harm due to the defendant's statement.

Protecting Your Small Business From Trade Libel

You can take these proactive steps to protect your small business from trade libel and safeguard your reputation:

• Watch Online Presence: Keep an eye on social media, online reviews, and comments related to your business. Address any negative comments or false statements promptly and professionally.
• Disclaimers: Adding a disclaimer to your website or products can help prevent potential misunderstandings and highlight that opinions expressed are not necessarily facts.
• Swift Response: Consider responding courteously and addressing the issue privately if you encounter a defamatory statement. Open dialogue can sometimes resolve misunderstandings.
• Legal Consultation: In cases of serious defamation, consult a business attorney with expertise in trade libel and defamation cases. They can guide you through the legal process and advise on the best action.
• Statute of Limitations: Be aware of the statute of limitations for defamation claims in your jurisdiction. Timely action is crucial.

Legal Defenses and Remedies

Some defenses can protect you against defamation claims, including truth, opinion, and absolute defenses. Additionally, "actual malice" generally applies to public figures rather than small business owners.

In the event of successful litigation, businesses may seek both actual and special damages. Actual damages cover quantifiable financial losses from the false statement. Special damages address specific, identifiable harm.

Defamation claims can be challenging to navigate, and potential defenses include:

• Truth: If the statement is true, it is an absolute defense against defamation claims.
• Opinion: Opinions are generally protected by the First Amendment. They are not typically considered defamation, as they are subjective expressions.
• Public Figures: Celebrities and politicians face a higher burden of proving defamation. This is due to the concept of "actual malice."
• Statute of Limitations: Trade libel claims have a limited filing timeframe. It's essential to understand the statute of limitations in your jurisdiction.
• Disclaimer: Including disclaimers on statements can help clarify that they are opinions or unsubstantiated claims. This could reduce the risk of trade libel claims.

Business Litigation and Damages

Business litigation involving trade libel can result in various damages, including:

• Special Damages: These are quantifiable monetary losses directly linked to false statements.
• General Damages: Non-monetary losses. This could include harm to reputation, emotional distress, and loss of business opportunities.
• Punitive Damages: In cases of extreme misconduct, courts can award punitive damages. Punitive damages serve to punish the wrongdoer and deter similar behavior.

Getting Legal Help

If someone made false statements about your business that you believe have negatively affected it, and you're wondering if it amounts to trade libel, you should contact a local business and commercial attorney to discuss your options.

For more information and resources related to this topic, you can visit FindLaw's section on Business Torts.