An individual’s most valuable asset is his or her reputation. Because of that, if your reputation is damaged based on someone’s false comments, written or oral, you may have a remedy under the law. Defamation occurs when a publication contains a false statement made with some degree of fault, reflecting injuriously on a person’s reputation, or exposing a person to public hatred, contempt, ridicule, shame or disgrace, or affecting a person adversely in his trade, business or profession.
Five elements are needed to establish a proper defamation claim:
(1) A false statement of fact was made;
(2) The statement was defamatory;
(3) The statement was published;
(4) You suffered injury as a proximate result of the publication; AND
(5) The person who defamed you acted with a requisite degree of fault in publishing the statement.
Defamation can be either Libel (a written statement) or Slander (an oral statement). Whether the defamation is libel or slander, the question is whether it is defamation per se or defamation per quod. When “per se” is alleged, damages and malice are presumed and need not be proven. However, when “per quod” is alleged, damages are NOT presumed and the complaint must allege special damages.
So, when does defamation per se exist? When the statement or statements are of such a nature that the words (1) import an indictable criminal offense involving moral turpitude or infamous punishment, (2) imputes some loathsome or contagious disease which excludes one from society or (3) tends to injure one in his trade or occupation.
In any defamation claim, the defendant’s best defense is truth. If the statements said, or written were actually true, that is a complete defense. Further, a defendant may defend him or herself by proving that the statements were his or her “opinion”. Who will decide that? The judge or the jury.