That’s Not Nice

Kids tend to get it right when they hear someone say something that is derogatory. They will almost universally address the speaker with the phrase, “That’s not nice.” Sometimes, adults do the same. The more common adult response is a desire to punish the wrong doer and recover money for the harm caused by those words.

Action against someone who says something bad about another is an action for defamation. Defamation can include oral statements (slander) and writings (libel). Defamation has the following five elements: (a) publication, (b) the statement is false (c) the person making the statement knew it was false, (in some cases act with reckless disregard for the truth or negligence is sufficient), (d) actual damage and (e) the statement must be defamatory, in other words derogatory or places a person in a bad position.

The seminal Florida case for decades was the 1947 Florida Supreme Court decision in Cooper v. Miami Herald Publishing Co. The court explained libel is when a person is responsible for publication by letter or otherwise and that publication either (a) exposes another to distrust, hatred, contempt, ridicule or causes another to be avoided, or (b) which has a tendency to injure another in his office, occupation, business or employment. If the publication is (a) not true and is not privileged and (b) a reasonable person would agree the natural result would be injury to another person in his personal, social, visual or business relations of life, wrongful injuries are presumed and the publication is actionable.

What about all the mudslinging in political campaigns? That seems to meet the definition of actionable defamation but we don’t hear about lots of lawsuits during or after campaign. The reason is there are a lot of excuses (defenses) to make defamation privileged and protect the publisher.

One defense to a claim for defamation is truth. No matter how bad the claim is, if it is true, it is almost always protected.

Another defense is the statement was opinion. Opinion is a strong defense but can fail when what was published is not clearly published as an opinion and was couched in terms that sound like a statement of fact.

A huge defense is privilege. Privilege allows defamatory statements without supporting a defamation action when public policy favors free and open discussion. Absolute privilege is the king of defenses but is generally limited to statements made in court or legislative proceedings. 

Qualified privilege can protect a statement made in good faith to promote or protect the interest of the speaker on an issue and not for the purpose of harming someone else. This is often a defense by members of a group of common interests, such as shareholders, employees, unions or co-owners of property. The privilege is to encourage and allow free communication between people with a common interest.

The weakest privilege protection is known as fair comment. Fair comment allows interested people to make “fair comment” on issues of public concern or people who have placed themselves voluntarily in a newsworthy position. Establishing malice ends a fair comment defense.

Public figure status is an additional defense available in political campaigns. Determination of public figure status involves a three-part test. Is there a public controversy? Does the person making a statement have a central role in the controversy? Was the statement relevant to the defendant’s role in the controversy? If those three tests are met, a person harmed by the statement must also prove it was made with actual malice. Malice means intent to harm.

There are many cases in which a statement is actionable per se. The statement is so clearly harmful that it carries with it an absolute presumption of not only harm but also malice. Defamation per se includes charges that a person committed a horrible crime, a person has an infectious disease, tends to subject the person to hatred, mistrust or ridicule contempt disgrace, or would undoubtedly hurt the person in his business. Specific examples of defamation per se are statements that the plaintiff was “bad news” and “sexual harassment material” made to a potential employer or, in another case, a doctor telling members of a medical board that he received more complaints about a named physician from patients and any other doctor on staff.

In 2008, Florida’s Supreme Court confirmed actionable defamation includes defamation by implication in the case of Jews for Jesus v. Rapp. Rapp was employed by Jews for Jesus and published an account in the organization’s newsletter in which Rapp’s Jewish aunt Edie recognized Jesus and repeated the sinner’s prayer. Edie sued claiming the account defamed her by implying she had joined Jews for Jesus or become a believer in the tenets of Jews for Jesus.

Defamation by implication is not a cause of action based upon falsity, as the statement can be true. It is what is implied when the surrounding facts and community are considered to make the true statement defamatory leading to a false conclusion.

There are a lot of statements or writings that are defamatory. The defenses do not get everyone off the hook. So why not more lawsuits? The answer, it is hard for most people to quantify in dollars and cents sufficient damage to make a lawsuit worthwhile and attorney’s fees are not recoverable as part of the claim.

Damages recoverable in a defamation case are limited to actual or compensatory damages. Those damages are financial harm or loss, mental suffering and injury to reputation. When the defamation does not hurt someone in a business, proving financial loss can be tough. That leaves mental suffering, and injury to reputation, which are difficult to prove. When the plaintiff cannot prove actual damages, the plaintiff may still win but the court will only award nominal damages ($100 or so). Who wants to sue for $100?

There is always a chance for a bigger payday. In Harris v. Plapp, a person at a swim meet wrote a memo that indicated a volunteer was dangerously drunk at the swim meet. The volunteer sued and got $25,000 for mental harm and $25,000 for harm to the volunteer’s reputation. The award was upheld on appeal. But even with the $50,000 recovery, was that case really worth it? Both sides paid lawyers for trial and yet again for appeal. How much of the $50,000 was left by the end?

Although a lawsuit can be filed to right a wrong, one should always consider the cost. If righting a wrong will cost more than a plaintiff is likely to recover, a lawsuit that makes sense on principal will quickly lose its luster after all is done. It may be in the attorney’s interest to go to court, but not so for the client. Good client-centered legal advice in these emotional matters is priceless.