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Defamation

What is Defamation?

Defamation is an untrue and unprivileged publication that has a natural leniency to injure the plaintiff or cause the plaintiff special damage. Defamation may consist of libel (written defamation) or slander (oral defamation). 

Defamation is defined as injury inflicted on a person’s reputation or standing in the local community as the result of another person’s harmful or untrue statements, which can be declared verbally or in writing in a newspaper, magazine or the political community. Some of the harm that can result from defamation includes being shamed, ridiculed, belittled, scorned, hated or targeted for contempt. A person who feels she or he has been defamed can sue for damages. Depending on the state, the individual bringing the suit to court might first have to demand a printed retraction of the alleged defamatory statement.

Libel is defined as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” 

Slander, on the other hand, is “a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means. . . .”. A slanderous statement may charge a person with a crime, or with having been indicted, convicted, or punished for a crime.  It may also characterize a person as having an infectious, contagious, or loathsome disease, or as being impotent or lacking chastity.

Slander is more commonly found in the employment context than libel, particularly during pre-termination investigations, at termination, or even during post-employment conversations with prospective employers.  Statements that tend to injure an employee with respect to his or her occupation are especially slanderous, either by accusing the employee of an inability to perform the general functions required of his or her profession, trade, or business, or by imputing something with reference to the employee’s office, profession, trade, or business that has a natural tendency to lessen its profits.  

What is required to prove defamation?

The accusation of defamation requires: 

(1) a publication that is 

(2) false, 

(3) defamatory, 

(4) unprivileged, and 

(5) that has a natural tendency to injure or that causes special damage. 

These elements vary depending on whether the plaintiff is a private or public figure, and whether the defamatory statement is of private or public concern.  A private plaintiff accused of something of private concern will have a much easier time proving defamation than would a plaintiff who is a public figure.  Generally, most employee plaintiffs are not public figures and the subject matter of the statement is not a matter of public concern.

What is Considered Workplace Defamation?

The elements required to prove workplace defamation usually include:

1) a false and defamatory statement about another;

2) the unprivileged publication or communication of that statement to a third party;

3) fault on the part of the person making the statement amounting to intent or at least negligence;

4) harm to the subject of the statement.

One of the most difficult aspects is determining whether workplace conduct harmful to an employee’s character is considered defamation. Examples of behavior that can be confused with workplace defamation include name-calling, trivial "water cooler" rumors, joking around, and sincere personal perspectives.

What Is Defamation of Character?

To reiterate, being vilified can feel terrible, but that doesn’t necessarily mean someone is attacking your character.

Defamation is defined, to the letter, as “The action of damaging the good reputation of someone, through slander or libel.”

It is possible to pursue defamation to punish the act itself and have it proven in litigation without further intent, but without proof of injury or loss caused by the defamation financial compensation won’t even be considered.

The information must also be a false statement of fact.

You may hear a negative thought about you, but it only falls into the category of defamation if it is not presented as an opinion.

To be blunt, even in the workplace people don’t have to like you.

Likewise, if what they say is negative and true it is not libel or slander. The comment must be untrue, and they must know that it is false beforehand.

To make matters more complicated, compensation is awarded based on the damage that you prove has already been caused.

You cannot ask for compensation because you believe that what was said could have caused you damage, or might cause you damage in the future. Monetary settlements are based on clear values that the winner of the case can present, no matter what prospective damage they think it might do instead.

What are some examples of defamation of Character?

Here are some tips on what does and does not count as defamation in the workplace, to help you know if you or someone near you has been a victim.

If someone is subjected to comments about their work ethic because of their race or gender, that is a case of slander. But the financial aspect of the case might focus on whether the comments affected potential promotions or raise. If the victim made less than their colleagues, and fellow employees could attest to that, as well as the employer vocalizing their intention to pay based on discriminatory practices, the victim might have a strong case for slander against their character.

For an example of libel, imagine a small business owner. If a newspaper or writer then claims that the business sells stolen or sub-quality goods intentionally, and this is a false and malicious claim, the victim may sue the newspaper for defamation. The writer’s article may then act as proof of libel, while receipts from the business can prove that they have suffered decreased income due to the false accusation and require compensation.

If you are a member of the service industry or part of a theatrical production, you may be subjected to critical reviews that are either spoken or published as part of your work. Criticism is an example of something that does not constitute slander or libel, as their comments are considered a privilege of their work. Remember, defamation requires published thoughts that present themselves as immutable fact, with an intentionally malicious nature to them.

What are the Elements of a Defamation Lawsuit?

Each state has its own defamation law, which sets forth what employees must prove to win their cases. In general, an employee must prove these elements: 

(1) the employer made a false statement of fact about an employee, 

(2) the statement was published (i.e., it was actually transmitted to somebody else), 

(3) the employer knew or should have known of the falsity of the statement, 

(4) the statement wasn’t privileged, and 

(5) the employee suffered actual harm because of the statement.

The first three elements provide a threshold for defamation lawsuits. Statements of opinion and true statements cannot be the basis of a defamation claim; truth is a complete defense to a defamation lawsuit. Similarly, a lie about an employee that is made in an employer’s notes for him or herself and not "published" to another person is unlikely to be considered defamation. On the other hand, some states consider self-publication—where an employee is required to disclose the employer’s false statement to a prospective employer because they formed the reason he or she was terminated—a basis for defamation.

Furthermore, if an employer believes in good faith in the truth of a statement, it is unlikely that there is a sound basis for a defamation suit. For example, if an employee misrepresents a medical condition to a coworker that he or she discloses to the mutual supervisor, it may be difficult to prove there was defamation. On the other hand, where an employer repeats a damaging office rumor that violates an employee's privacy without looking into it, there may be a basis for alleging defamation as well as privacy claims.

Absolute privilege can be a complete defense to defamation. The absolute privilege applies to statements having a relationship to judicial or legislative proceedings, or for government officials acting in the course of their employment, or for any compelled publication or broadcast.

Qualified privileges are those statements that could be considered defamatory, but which are made in good faith, on a subject matter where the person making the statement has an interest or duty, made to somebody with a corresponding interest or duty, and made without actual malice. Most often these are statements that are published due to public interest or where there is a private interest of such importance that it is protected by public policy. In the employment context, for example, where an employee is a public figure already under public scrutiny for embezzling funds, a PR manager's comment to the press about him, made without actual malice in order to protect the company's reputation may be subject to a qualified privilege.

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