Anyone who has had any controversy in their life knows how terrible it feels to have negative information spread around. Unfortunately, we have no "mute button" for obnoxious people. If your situation involves someone presenting a credible threat to your physical safety, you might consider getting a restraining order instead.
Court proceedings against someone for defamation can be quite expensive, and where the person being sued has no money to be sued for, not a good investment. If the bad actor in a case has no money in the first place, such a judgment is unlikely to stop them from continuing to act badly on its own.
Also, because our legal system generally requires each side to pay their own attorney fees in such a case, a lawsuit against a wrongdoer can sometimes make the situation worse with little benefit. So it is important to give the matter careful thought before filing the suit.
What is Defamation?
To be successful in a lawsuit for defamation, each of the following elements must be proved in court. The elements of a claim for defamation are:
- the making of a defamatory statement
- the publication of the defamatory statement
- and sometimes, proof of a resulting special harm
Written defamation is called "libel."
Spoken defamation is called "slander."
What is a Defamatory Statement?
A statement that diminishes the esteem, respect, goodwill or confidence in the person by the community may be defamatory. Statements interpreted as jokes, jests, statements of pure opinion, verbal anger, and hyperbole are not defamatory.
Notably, someone's opinion is not as likely to be defamatory. A person's opinion exists between their ears only (though it may emerge from their mouth) and therefore it is difficult to prove true or false in a court of law.
Here are two examples to show the difference.
Example 1: John is at the baseball game after work with Jawad. The topic of their common associate Frank comes up. John tells Jawad that he thinks that Frank is a hopeless and disgusting alcoholic and a useless drug abuser. Jawad has heard that Frank drinks sometimes, and that he smokes some marijuana on occasion but he’s never seen Frank acting as if he were seriously intoxicated. Jawad tells Frank what John said, and Frank is upset.
Example 2: John is at the baseball game after work with Jawad. The topic of Frank comes up. John tells Jawad that just last week he saw Frank come stumbling out of a bar, reeking of alcohol. He then says he saw Jawad smoking something powdered out of a small pipe. John then tells Jawad that Frank started yelling at the sky and screaming about aliens. Jawad knows that Frank drinks sometimes, and that he smokes some marijuana on occasion but he’s never seen Frank acting as if he were seriously intoxicated. Jawad tells Frank what John said, and Frank is upset.
What John tells Jawad about Frank’s substance abuse in example 1 is clearly hurtful to Frank and harms Frank’s reputation. It’s a claim that Frank is an alcoholic and drug abuser. But John hasn't said what facts led to his having that opinion. Because it would be impossible to prove whether John actually believes what he’s saying, the statement itself is probably just his opinion and not factual. Only John knows whether it’s honestly given or not. And like anyone else, he’s free to change his opinion whenever he wants, including while testifying in court.
On the other hand, what John says in example 2 is that Frank did some specific things. A court could easily point to the possibility that bartenders and others could be found to verify or disprove that Frank was in a bar at the time, how much he drank, whether he seemed drunk, or used drugs or shouted in the street afterward. Security cameras and other evidence might exist, too. These are all reliable ways to prove whether or not John's statements were true or false.
There is much more to it than that, which is why you may wish to proceed to getting an opinion from a lawyer if there’s any question in your situation.
What is "Publication?"
Publication is the requirement that the defamatory statement be actually communicated to a third party other than the person making the statement and the person about whom the statement was made.
What that means is that it is impossible to defame someone to their face in a one-on-one conversation. Defamation is centered on reputation in the community.
Note that the use of "publication" is to emphasize the third party requirement; it does not require that the statement be put in a newspaper or social media.
Importantly, false or defamatory statements published in a newspaper or equivalent have special timelines for demanding a retraction. Failing to do so can cause a court to throw out your claim. Contact an attorney as quickly as possible if this applies to your situation and be sure to emphasize the urgency of the timeline.
What are Special Harms?
In some types of cases, no special harm need be proved. Libel, or written defamation, is one such example.
Verbal slander that hurts someone’s ability to work in their career, accuses someone of committing a crime, or of having a contagious disease are also generally excused from the special harms requirement.
Harms like emotional distress or illness resulting from that distress are generally not special harms.
What if the Statement is True?
Truth is an absolute defense to a defamation claim. In example 2 above, if a court determined that Frank actually did drink that much, use the drugs, and shout at the sky, then he has no claim against John no matter how much the statement harmed his reputation in the community. Even if it cost him his career.
What other Barriers Exist?
One of the biggest barriers to success in any such lawsuit is the initial round of judicial scrutiny due to Oregon's Anti-SLAPP laws. This is a powerful disincentive to people seeking to use defamation to obtain a sense of justice from filing lawsuits because it means that only the exceptional case will be allowed to proceed to trial. It also means that you may be found liable for the other party's attorney fees if your case is dismissed on this basis.
Every Case is Different
Not sure if your claim for defamation is viable? Contact an attorney for a free consultation. If you live in Oregon, particularly in or near the Portland Metro Area, contact Steven Law Firm to request a consultation.