Every lawyer I know will tell you: It’s hard to win a suit for defamation.
They’re wrong. It’s easy.
Step 1: Prove damage
To win a defamation case in New York, you need to prove three things. First, someone has to say or publish something so terrible, so outrageous, so bad, you’ve been seriously wounded, and you can prove it.
I don’t mean that you must prove your feelings were hurt (although some things are just assumed to hurt–see “Libel ‘per se’” below). We’re not saying you were deeply insulted. For this to hold, you must show people that your life changed because–and only because–these defamatory words saw the light of day.
You were fired. Your restaurant closed. You were expelled. The defendant’s words changed your life, cost you money, irreparably harmed you. Without those bad words, nothing would have changed.
Step 2: Lies, lies, lies
You also have to prove the terrible/outrageous/bad words were not true.
This can be tricky. How tricky? Most defamation suits lose on this element. Sure, it’s the truth that hurts, but that’s not the definition of defamatory. People go crazy because some food critic hated their restaurant, or a coach told a college with an athletic scholarship on the table that their son was a klutz, or . And face it, it’s a free country.
Fact is, this is America. Freedom of speech allows people to hurt our feelings and upset us and even offend us. Words can be gross. Words can be cruel. Words can be politically incorrect or provocative.
I don’t like Bill O’Reilly. He’s mean, vicious, and rude. But I can’t sue him if he says something nasty about me personally, no matter how awful he is. Freedom of speech is right there at the top of the Constitution. For defamation, words have to be factually false. Opinions are protected speech.
Blatant lies, on the other hand, are not.
In New York, you must be careful in wording your Complaint for defamation. The defaming words must be spelled out. If someone says you are “stalking” them and you have “violated an order of protection,” say that. You also have to say when this happened, as close to the moment as possible, which should include the date, and even better, the time and the place. Take nothing for granted. You must have specificity in New York defamation cases to survive a motion to dismiss.
Step 3: Malice
The third thing you need is malice. “Malice” in law isn’t necessarily the feeling of ill will. Malice can be inferred by someone’s actions–“reckless disregard for the truth.”
That oft-used phrase was defined by the Supreme Court in 1962, concluding a landmark case, St. Amant v. Thompson. A Louisiana politician had quoted a supporter who had outrageous things to say about the local deputy sheriff. Those things included accusations of bribery and other “nefarious” activities. Naturally, the deputy sheriff sued for slander. His life was a mess.
But he lost. Even though the deputy sheriff had done nothing illegal or wrong, even though he was damaged terribly, all this was not enough to win. The politician prevailed, because, in the eyes of the Supreme Court, the politician had trusted the “informant.” There was no malice. No reckless disregard. No harm intended.
Recklessness
In court, a person’s “reckless” behavior doesn’t translate into mere carelessness. “Reckless” in law means that even though someone “entertained serious doubts as to the truth,” as the judge explained in Green v. Northern Publishing Company, they printed it anyway. The St. Amant judge gave examples of “serious doubt” for slander and libel: Pure fiction was one. An anonymous phone call was another. Stupidity, however, was not reckless.
In another words, saying or publishing something stupid is forgivable in court. If you’re obviously smart enough not to qualify for this excuse–say, you’re a doctor who accuses someone of a crime–you can probably kiss this excuse goodbye. High IQs that graduate from med school and run hospitals are not repeat not going to be able to use this in court.
So, if you want to win a lawsuit for libel or slander, all three of these conditions must be met. And you have to prove them in court. You can take that to the bank.
There are exceptions.
Libel ‘per se’
Now and then, someone says something so vile, so evil, the law assumes malice and damage. The New York Court of Appeals has listed 4 things it will consider automatically defamatory: (1) accusing someone of a serious crime; (2) a false statement that “tends to injure another in his or her trade, business or profession,” (3) lying about someone having some “loathsome disease,” (4) false statements about a woman’s “unchastity.”
Anything that falls into one of these 4 categories is called “libel per se” or “slander per se.”
Claims about drug addiction or alcoholism, serious criminal acts, nasty things someone says about promiscuity — all qualify as libel per se. New York law finds damage and malice automatically. Woe to those who blurt these insults out about the wrong person.
This was Courtney Love’s problem in California when she was sued in 2009 by her fashion designer. Love called the designer “a nasty lying hosebag thief,” “a prostitute” and “a drug addict” on Twitter, MySpace and etsy.com. Evidently the designer is none of those things. Damage settlement was said to be around $430,000.
Love didn’t learn, apparently, from this mistake. A few months later, she was sued again, this time by her former lawyers, who she said were “bought off” by her opposition. (Note: If you’re going to defame someone, don’t go after your own attorney.)
Calling someone “gay” in New York, at least, does not qualify as libel per se. Lawyer Howard K. Stern learned that when he sued author Rita Cosby for saying he’d had sex with Daniel Birkhead in the Anna Nicole Smith biography, Blonde Ambition. The New York court threw that count out of his defamation suit, Stern v Cosby, reasoning that words are not defamatory “merely because they impute homosexuality.”
The Guess? Mess
One of the biggest judgments in history was the $370 million decision leveled in 2009 against Georges Marciano, co-founder of Guess?, in favor of five office workers he fired in 2006 for embezzlement and fraud. The D.A. refused to charge them. So the Guess? guru sued his former employees and accused them of fraud (a serious crime).
Had Marciano stayed in the courtroom, he might have avoided trouble. You can’t sue someone for defamatory statements they make in legal documents, or for things that witnesses say during a trial, no matter how terrible and untrue these statements may be. But Marciano didn’t stop. He sent out dozens of emails and letters about them. The slandered workers included the Guess? receptionist. They won a counter-suit after they had trouble finding jobs (damages).
Just one month later, Marciano’s former accountant won a $55 million defamation judgment. Seems Marciano accused him of stealing $2 million. Marciano also submitted false tax forms to the IRS claiming his accountant was paid $460,000 and filed a formal complaint with the California Board of Accoutancy, part of a malicious campaign of professional destruction.
All lies. The judge ruled in the accountant’s favor. It all ruined Marciano, who moved to Canada in August 2009, two months before the state of California began involuntary bankruptcy proceedings.
The Statute of Limitations
There is a one year statute of limitations in New York for defamation.
This means that within 365 days of the moment the words were said or printed, your Complaint must be filed and stamped by the court clerk.
This can be a problem. If a jealous colleague tells people in the office that you are sleeping with your supervisor (assuming this is not true), and you don’t find out for 18 months, you lose. The SOL has passed. If you hear about it within a year, however, you may have a case.
Your little community newspaper may publish news that you violated an order of protection. If you find out within the one year SOL, and there’s no order of protection, and there’s evidence of malice, you are in business.
There is one more possible route if you miss the SOL.
‘Tolling’ the SOL
Sometimes, courts legally stop the clock–“tolls”–to extend the statute of limitations.
The SOL is automatically suspended for plaintiffs serving in the military in a foreign country at war, plaintiffs in a coma, younger than 18 (the CPLR 208 “infancy” toll) or, literally, insane. Ongoing litigation can also toll the time you have to sue.
“Tolling” is elastic. A catastrophe might extend the amount of a time a Plaintiff has to file a suit, if a situation convinces the judge that tolling serves the interests of justice but will still be fair to the Defendant.
If your defaming enemy lived in another state, your suit gets complicated–and a New York court may not have “jurisdiction.” Rules of the state that does have jurisdiction, including the SOL, may apply, instead. This is when you need to get a lawyer. Fast. Find one who wins defamation cases by searching Justia.com for free by doing an advance search for a New York State case with an order.
Should you sue?
Is this that simple? Why, then, are lawyers so pessimistic about defamation cases?
In the real world, most clients who walk through the door in search of a defamation suit are in such a state of utter rage, they can’t think straight. Rationally goes out the window. They can’t kill anyone, so they sue. And they lose.
Look again at Steps 1, 2 and 3 above. These plaintiffs think, My neighbor is telling everybody I am a jerk. I’ll show him.
Maybe your ex-bff is telling everyone you had an abortion. Or your former live-in girlfriend is broadcasting to the world that you are a drug addict. Or your co-worker says you cheat on your overtime sheets. I hate her. I’ll show him! I’m calling my lawyer!
Is there a shred of truth to these things? Then it’s not untrue.
Are they someone’s opinion? That’s protected.
Is it malicious, damaging, and totally untrue? Really?
Sure, we get angry. That’s life. There’s sticks, there’s stones, and there’s brutal words. When there’s malice and damage, and it’s all factually untrue, and it happened less than a year ago, and you can prove it all, a defamation suit will make them pay!
