Client: These people are saying really nasty stuff about me, and I want to make them stop."
Lawyer: What have they been saying, exactly?
The usual. You know, 'Jim is a big, fat jerk, that Im a complete idiot and that Im a complete and total waste of a human being.'
Where are they saying these things?
Around. You know, on the intertubes, on the phone, in conversations. I want to sue them for defamation you know, libel or slander, one of the two. What can I do?
This is just another entry in the I-hear-this-all-of-the-time, maybe-more-than-you-might-think, sweepstakes.
With the advent of cell phones, e-mail and websites, the opportunity for people saying really nasty things to and about each other has increased exponentially. This really isnt a surprise. It seems as though the majority of our time these days is either reading about, or contributing to, the smearing of other people to, well, other people. However, this doesnt automatically make it slander or libel.
Believe it or not, slander and libel are not interchangeable terms, although theyre used by the public at large as synonyms. Both fall under the heading of defamation, but they are quite different.
Slander means the spoken defamation of a person or entity, while libel is the written defamation of a person or entity. You had better know which one youre acting on before you even attempt to take your opponent to court.
As with all causes of action, slander and libel have a number of elements to them. Basically, its either the written or spoken act of making inflammatory, accusatory or false statements about another that causes damages to the person being spoken or written about. The key word in that last sentence is damage, and it is, by far, the most difficult element to prove.
Can you state, with certainty and an affidavit, that someone was going to hire you for a job, buy your product, use your service or give you something, but for the statement they heard or read about you? This is the only way a suit for defamation can succeed.
This is, as you might have already surmised, very difficult to achieve. Sure, we can think that we were about to get this great job, retain this lucrative client or get a bunch omoney from our next door neighbor, only to be foiled by a backyard conversation or a website that painted us as a complete fraud. But, truth be told, it is well-nigh impossible to get your potential boss, former client and/or neighbor to testify to that fact before all and sundry.
I know, it seems like every few weeks we heard about another case in England where a celebrity sued a newspaper for libel, only to prevail. England is a different county with different rules. Here in the United States, public figures arent afforded the same protection that are granted to private citizens. There are exceptions, the main one being that of a public figure. If you happen to be a public figure, American justice surmises that youve injected yourself into the public culture, and, by extension, public discourse. As a result, people can pretty much say anything they want about you, whether the statements cause damages to you or not.
Additionally, there is one absolute defense to defamation in general. It is called wait for it the truth.
If Jim really is a scum-bag, if he is a liar or a big fat jerk, and you can prove the same, then any case he may have against you even if he is able to prove that holy grail of damages he will likely not prevail because you were telling the truth about him. So it seems as though your parents were right you can never go wrong with the truth.
So, the next time you find out that someone is saying or writing, let us say, interesting and colorful things about you, just remember, you have to prove some damages, preferably monetary damages. However, if what the unwashed masses are saying or writing about you is the truth, well, take it as a compliment. As it is written, as it is said, better to be part of the conversation as opposed to be part of no conversation at all.
Christopher L. Markham is a general practice attorney based in Frederick. He can be reached at firstname.lastname@example.org.