“Defamation” is a word loosely used by people when they feel that another person has said something insulting and/or false about them. However, the word has a much more specific definition in the law, as it is defined as any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person. In New York State, ‘defamation’ is a civil charge, and encompasses both written statements (“libel”) and spoken statements (“slander”).
In our practice we usually see defamation lawsuits brought when false criminal charges are levied against someone and which, for example, jeopardize their employment or even lead to their incarceration. While it certainly does not take much for someone to utter or publish a false statement about another person, properly prosecuting a lawsuit in such a case is no easy task as New York has rather demanding specific pleading requirements in these types of cases. Failure to properly craft these lawsuits renders actions defective (and for this reason, our firm has been very successful in defendant against them). What follows is a brief discussion of the law of defamation in New York:
To sustain a defamation claim under New York law, a plaintiff is required to show that:
(1) A defendant made an oral or written factual and defamatory statement;
(2) Regarding the plaintiff;
(3) That was published to others by the defendants; and
(4) That there was resultant injury, unless the statement falls within a category of “per se” harm.
These are the basic “elements” of a defamation lawsuit, however, what many attorneys (shockingly) seem to overlook is another requirement which is set forth in the Civil Practice Law and Rules, and that is that in any action for libel or slander, the particular words complained of must be set forth in the complaint. This is a strict requirement and we have defeated lawsuits because opposing attorneys represented have failed to draft their documents in the proper fashion. Attorneys also seem to have difficulty with element four (resultant injury or per se harm). Because the accountability for uttering harmful statements is balanced against the constitutional right to free speech, the law requires that the false statement actually harm the plaintiff (economically, for example), unless the statement is considered “slanderous per se” (meaning the words are considered so offensive that the law will actually presume damage to reputation and business even if such damage hasn’t been shown). Examples of “per se” defamatory statements are those which impute some offensive or loathsome disease, charge a person with a crime involving moral turpitude or which subject a person to infamous punishment, or words spoken in relation to one’s business or trade and which have a natural tendency to injure a person in their business or trade.
In addition to these stringent pleading requirements, there are a slew of defenses and technical challenges to allegations of defamation which a lawyer can make in order to defeat such a lawsuit entirely (for example, an alleged defamatory statement can be challenged if it can be shown that it is an “expression of opinion” which is non-actionable). As such, when a person is sued for defamation, an adroit lawyer has many technical and procedural avenues available to successfully defend them. As such, if you or someone you know is accused of defamation, you should contact an experienced attorney immediately.