1

Publication to the Plaintiff Alone is Not Actionable.

Defamation must be communicated to someone other than the Plaintiff. Statements uttered directly to the Plaintiff (in letters, phone calls, emails, or in person) and not seen or heard by others, do not damage the Plaintiff's reputation. However, any publication to ANY 3rd person, regardless of the relationship to either the Defendant or the Plaintiff, is actionable.

2

Publication Need Not Be By Words

Any action which results in the defamatory statements being communicated to a 3rd party is a "publication" of that statement. Even gestures or other conduct in public may constitute publication. For example, someone who is innocent of shoplifting, but who is stopped by store security in the parking lot and is marched in handcuffs back through the store to the security office has been defamed, because people viewing the scene think the Plaintiff is a crook, thereby damaging Plaintiff's reputation.

3

Publication Must Be Negligent or Intentional

In order to successfully sue for defamation, the Plaintiff must allege and prove the communication to the 3rd party was intentional or negligent. Intent is usually obvious and easy to prove, however, negligence usually arises where the Defendant communicated to the Plaintiff directly, but the communication was seen or overheard or intercepted by the 3rd party. In such cases recovery can be had only where it can be proven that the Defendant HAD REASON TO FORESEE that this would happen and had a reasonable way to avoid the publication to the 3rd party.

4

Damages for Defamation

Generally damages depend on the form of the publication - libel or slander - and on the motives with which it was uttered. Recoverable damages are also constitutionally limited in several situations. To collect damages for slander you must make a special showing of specific damages (lost income, business opportunity, etc.) unless the slander is deemed "actionable per se." A person who proves special damages may ALSO recover general damages, even if it far exceeds the proven special damages. "Actionable per se" refers to false claims that the Plaintiff has committed a serious crime, has a loathsome disease, is incompetent in her or his trade or profession, or is unchaste. If the defamation is in the form of libel and is clear on its face, most jurisdictions presume general damages simply from the fact that the falsehood was published. A majority of states allow for punitive damages if the defendant can be shown to have published the falsehood with hatred, ill will, or spite.

5

Defenses

There are a number of defenses to the claim of defamation. Defenses include: consent, common law absolute privileges, common law conditional or qualified privileges, constitutional privileges and truth.

6

Consult With A Competent Attorney

There are a number of rather technical aspects of defamation law which need to be analyzed in regards to the specific facts in every situation. The status of the person defamed as a public figure and other constitutional issues may come into play. These technical issues are too lengthy to be covered in a brief Legal Guide and your attorney will need time to review each situation and assess their applicability.