Defamation is a false statement of fact against an individual’s character or reputation, either intentionally or negligently published to a third person, holding the defamed person up to ridicule, contempt, hatred, shame, or disgrace.
There are two general types of defamation: slander and libel. Regardless of the type, the truth is an absolute defense to a defamation lawsuit. Accordingly, where it can be shown that the published statements are substantially true, the lawsuit will be defeated.
Slander is an untrue spoken statement about a person that harms their reputation and standing in their community. A person injured by slander can bring a civil lawsuit against the party that made the false statement.
Where a person is defamed in writing, it is called libel. Libel also includes false business reviews published on gripe websites such as Yelp and Trip Advisor. In many ways libel is more serious because it is more likely to reach a far greater audience, and since the rise of the internet in the 1990’s, the libelous statements are there to stay. It is for this reason that in New York a libeled person’s damages are presumed.
DEFAMATION PER SE
Another subset of defamation is known as defamation per se, which is divided into slander per se and libel per se. Defamation per se, whether spoken or written, is limited to four categories of false statements that either (1) accuse a person of committing a serious crime; (2) injure or damage a person’s business, trade, or profession; (3) allege that a person has a loathsome disease (such as Herpes or AIDS); or (4) imputes unchastity. Where a statement qualifies as defamation per se, the law presumes that damages will result, avoiding the necessity of proving them separately. As with any claim for defamation, a lawsuit based on slander or libel per se is defeated by a showing that the published statements are substantially true.
Trade libel is the knowing publication of false and derogatory material regarding another’s business, that is calculated to prevent others from doing business with the defamed party or otherwise interferes with their business relationships. A person alleging trade libel must establish that the publication of the false material was a substantial factor in inducing others not to have business dealings with them. Though they are similar, trade libel requires proof of special damages, while libel per se, even if based on disparagement in the person’s business, requires no proof of special damages. However, like all claims for defamation, a cause of action for trade libel is defeated by a showing that the published statements are substantially true.
It is important to note that the statute of limitations for defamation is different in each state. A statute of limitations is the time that a civil or criminal action must be brought forward. In New York the statute of limitations for defamation is one (1) year from the date the defamatory statement is communicated (published) to someone other than the plaintiff. Because the time to bring a defamation action is shorter than a negligence action, it is imperative that a person who believes they have been defamed speak with an attorney immediately.