Proving Defamation Damages

Proving Defamation Damages

A lawsuit for defamation has the following basic elements: (1) making a false statement; (2) about a person; (3) to others; and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. In such a case, the person who made the statement has to have made it with a known or reckless disregard of the truth. This article discusses the fourth element, actual damages.

Defamatory Per Se

If, after proving the other basic elements of defamation, the harm caused to the plaintiff’s reputation is apparent, the plaintiff does not have to prove actual damages. In such a case, the damages are inherent in the defamation. Inherently defamatory false statements are known as defamatory per se (“defamatory by itself”).

With the division between libel and slander, inherently defamatory false statements are known as libel per se (“libel by itself”) and inherently defamatory false statements are known as slander per se (“slander by itself”). In a case of libel per se or slander per se, actual damages do not have to be proven, because it is generally presumed that the plaintiff suffered general damages.

There are many examples of statements that are considered defamatory per se. Falsely accusing the plaintiff of having committed a serious crime is defamatory per se. Falsely claiming that the plaintiff has a loathsome disease is defamatory per se. Falsely accusing the plaintiff of incompetence or immorality in his or her business, calling, office, profession, or trade is defamatory per se. Falsely claiming that the plaintiff engaged in serious sexual misconduct is defamatory per se. Defamation per se allows the plaintiff to recover general damages, plus any special damages that the plaintiff can prove.

Lamelza v. Bally’s Park Place, Inc.

In this 1984 case, defendant’s casino employee called plaintiff customer a “card counter” and a “scum.” The court held that the casino employee’s false statements were not slander per se.

Not Defamatory Per Se

Libelous statements that are not libel per se are known as libel per quod (“libel whereby” extrinsic evidence of damages must be presented). Slanderous statements that are not slander per se are known as slander per quod (“slander whereby” special damages must be proven).

In most states, where the harm to the plaintiff’s reputation is not apparent, the plaintiff must prove special damages. Once special damages are proven, general damages may be “tacked on” and recovered. In some states, special damages need not be proven for libel per quod. Those states follow the traditional rule that because libel is more permanent than slander, general damages may be awarded for any libel. No state awards general damages for slander per quod.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.