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August 24, 2016
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by Donald B. Kaufman

It is not unusual to get a telephone call from a client or prospective client (let’s call him John), who says, “Somebody is saying false things about me. I want it to stop, I want an apology, and I want damages.”

John needs to know how the law treats this situation, so we discuss some basic aspects of defamation law. Defamation is a false “statement of fact,” made to a third person (that is, not just to the person being defamed), that causes injury to reputation. Written defamation is libel; spoken defamation is slander. Statements of opinion are not actionable, and often an initial issue for the Judge is whether the allegedly defamatory statements are fact or opinion. Some statements are protected by a privilege to make them, such as a statement by a legislator on the floor of the legislature. In some jurisdictions, some statements may be presumed to cause harm to reputation, such as an accusation of specific criminal conduct, and recovery of damages may occur without proof of out-of-pocket, “special” damages. Other statements may be false but harm is not presumed, and in this case the plaintiff must prove out-of-pocket damages. Generally, a court order will not order the defamer not to make false statements in the future. A defamer is liable for the reasonably foreseeable re-publication of his defamatory statements. The broader the publication, the greater the damage. Claims for defamation may be subject to a short statute of limitations (it is one year in Pennsylvania).

John has listened to all this, and, like almost everyone who believes he is being defamed, he is understandably angry and wants several things: he wants it to stop, he wants his reputation to be restored, he wants to be vindicated, he wants to be paid, he wants the defamer to be punished, and he doesn’t want to spend a fortune. It’s time to talk with John about the drawbacks of bringing a defamation lawsuit, and what his other choices are, so that he can decide how best to proceed.

The drawbacks:

1. TIME. Like all civil lawsuits, a defamation action likely will take more than one year (and maybe two or more years) to get to trial. While commencing the action may cause the defamer to stop defaming, it will not get any-court-ordered relief until a judgment following a trial. Such a judgment will be appealable, and that appeal may take about another year.
2. MONEY. Unless John can find a firm willing to take his case on a contingency basis, he will have to pay his attorney’s fees. Even if he wins the case, he probably will not be able to recover those fees from the defendant. Each case has its own likely costs (for example, the number of depositions depends on the facts of the case), and those costs may be driven up by various motions and maneuvers by the other side.
3. UNCERTAINTY. Nobody knows who will win a trial.
4. DISTRACTION. Intermittently, John (and perhaps John’s friends and relations) will have to spend time and effort on this case (for example, preparing for and giving deposition and trial testimony). There also may be an emotional cost to being involved in the case.
5. NOT WISE TO START-AND-STOP. Once a lawsuit is commenced, if the plaintiff unilaterally discontinues it he may be exposed to a claim for wrongfully initiating it. He also may be faced with a counterclaim (if the defendant can think of one).

All of the above “drawbacks” are common to lawsuits generally. There are additional drawbacks that are especially part of a defamation claim.

6. MORE PUBLICITY. It is an ironic truth that bringing a defamation lawsuit gives further publicity to the false statements that started it. Once the false statements appear in a pleading filed with the court (as they must in the complaint describing the claim), news media are free to republish the statements when reporting on the case. I sometimes tell clients the story about the congressman whose name appeared on a list of the top ten dumbest congressmen: he held a news conference the next day to deny it.
7. THE PRIVILEGED SOAPBOX. Statements made in testimony (in depositions and at trial), and in filed pleadings (such as an answer to a complaint) are absolutely privileged. So, the lawsuit gives the defendant the opportunity to make the false statements (again), this time with impunity.
8. THE GLASS HOUSE. The defamation plaintiff puts his reputation at issue. The defendant must have the opportunity to try to prove the truth of the allegedly false statement. So, the defendant may now use discovery (including interrogatories, document requests, and depositions) to explore the plaintiff’s reputation. A defamation plaintiff must be prepared to have his behavior thoroughly examined. Also, if the plaintiff seeks damages for emotional distress (in addition to injury to reputation), the plaintiff can expect to reveal whatever records of psychological treatment he may ever have had.

Nonetheless, there may be good reasons to bring the defamation lawsuit. If the harm is real and substantial, and/or if John’s reputation is his lifeblood, then a lawsuit may be an unpleasant necessity.

Having heard all this, John wants to know what he can do about the problem short of bringing a lawsuit.

Sometimes an attorney’s cease-and-desist letter can cause the defamer to stop defaming. It will not remedy the harm already caused, but it may serve to prevent additional harm in the future. The letter can go directly to the defamer if he is not represented by counsel; the hope is that the defamer will consult with counsel after getting the letter. Why? Because that counsel is likely to advise the defamer to stop, or risk further exposure. The defamer may also be willing to remove the defamatory comment if possible (for example, if it is posted on the defamer’s website).

Even if John is not ready to take affirmative steps, he should try to keep track of the defamatory statements. If he hears of slander, he should write down the slanderous words, the time and place they were said, and who heard them. If he sees libel, he should keep a copy of the writing and note its date and source. These steps may help in the collection of evidence should John decide later (keeping in mind the statute of limitations) to start a lawsuit.

While sticks-and-stones break bones, sometimes words do hurt. The law’s remedies are imperfect at best, and the potential defamation plaintiff should consider carefully before going to court.

AUTHOR:  Since 1987, Don Kaufman has been an attorney in the Litigation Group of McNees Wallace & Nurick LLC in Harrisburg, PA.

NOTE:  This article is presented with the understanding that the author and publisher do not render legal or other professional service to the reader.  Information in this article may become outdated.

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