November 2014 Newsletter
A lawsuit for defamation has the following basic elements: (1) making a false statement; (2) about a person; (3) to others; and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. In such a case, the person who made the statement has to have made it with a known or reckless disregard of the truth. This article discusses the first element, making a false statement. A false statement of fact about a person that tends to harm the person’s reputation is known as a defamatory statement.
To be a defamatory statement, the statement must be a statement of facts that, if believed, would cause a substantial group of respectable people to lower the esteem in which they hold or regard the person or deter them from associating with the person (e.g., “He’s a drug addict.”). If only the person or only a few people believe that the statement tends to harm the person’s reputation, the statement is not defamatory (e.g., “He’s a genius.”)
Proving That a Statement Is Defamatory
Sometimes it is easy to prove that a statement is defamatory, because the statement clearly harms a person’s reputation (e.g., “She may have her name listed in the Yellow Pages under Interior Decorators, but she is a lousy interior decorator.”)
Sometimes it is difficult to prove that a statement is defamatory because the statement alone does not clearly harm a person’s reputation (e.g., “He is a butcher.”). If it is not clear how the statement is defamatory, the person must show facts not in the statement (e.g., that the person is a chef in a five-star restaurant) and explain how the statement is defamatory (e.g., that describing the person as a butcher created the false impression that he was not a skilled chef competent to work in a five-star restaurant). The showing of facts not in the statement is known as the inducement. The showing of how the statement is defamatory is known as the innuendo.
Notice that a statement not defamatory in itself cannot be made defamatory by innuendo alone. Innuendo merely clarifies the application of the statement. Innuendo alone cannot change the original language of the statement or enlarge the statement. For example, a person cannot contend that when someone said “you’re a wonderful doctor” what was really meant was “you’re a quack” (unless it can be shown that the statement was in a code understood by the audience).
Can You Defame a Dead Person?
In most states, you cannot defame a dead person because a lawsuit for defamation does not survive the death of the person who has allegedly been defamed. In essence, the reputation of a dead person is left to history. Note, however, that a statement made about a dead person may defame a living person. For example, if someone claims that your deceased mother was not married to your father when you were born, when in fact your mother was married to your father when you were born, it has been falsely claimed that you are a bastard.