Defamation: Understanding the Varying Degrees of Certainty

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Defamation: Understanding the Varying Degrees of Certainty by Aaron Pierce

When someone makes false accusations against, or statements about, another and transmits them to others by written word or word-of-mouth, and those statements damage the reputation, character, or integrity of that person, the person harmed may recover damages from the person or entity who made the false statements.

Said another way, defamation is communication of a false statement that harms a person or business. More specifically, slander is spoken defamation and libel is written defamation, which can include drawings.

But, there are a lot of exceptions.

The biggy: Truth is an absolute defense. If you say something egregious about a private individual or publish it on the front page of The New York Times, but it’s true, a suit cannot be filed—anywhere. Recourse can only be sought for statements that are false.

In some jurisdictions, defamation can be treated as a crime rather than a violation of civil law. In New York, it is a civil case cause of action, and there are different kinds of defamatory actions: defamation per se, negligent supervision, and libel per quod.

Most often under New York law, the targeted individual or business must be able to demonstrate actual financial damages. But, on the other hand, defamation per se, exists when what was published, was so grossly negligent, so starkly awful, that damage can be presumed, without actually proving that it does. With per se, the statement must cause assumed injury to a person’s business, trade, or profession; hurt feelings do not qualify.

It can also sometimes be argued that written content may warrant public exposition, because it is in the sphere of legitimate public concern, and reasonably related to matters that should be exposed. In this instance, the affected party may recover but must prove defamation through a preponderance of evidence—which is distinct from a reasonable doubt.

A preponderance of evidence (51%) must show that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination. If the grossly negligent output of information (which is usually an obvious and foolish error) is, in fact, false, then the publisher is exposed, and a suit becomes an option.

Often, cases may hover between defamation per se and defamation. With the latter, it is imperative that you demonstrate damages.

Regardless, these are the steps to take if you feel you have been defamed and your reputation has consequently suffered harm: 

  • Document your claim. When, where, and how was the false statement published?
  • Act quickly; you have a limited time in which to sue.
  • Contact an attorney experienced in the law governing defamation.

Contact me here with questions or comments.

Aaron Pierce
(212) 882-1752
253 Church St. Suite 4A
New York, NY 10013