One of my goals in writing this blog has been to bring clarity to various legal concepts. My purpose in doing so is to help people understand that what they think is or should be legally so is not always the case.
One of the most misunderstood legal claims in existence is defamation. If I had a nickel for everytime I’ve heard someone use the term “defamation” improperly, I’d be a millionaire. The best one was the person who relented to my contention that what he was claiming to be defamation did not meet the legal test for such a claim by responding that maybe I was right that it wasn’t “legal defamation”, as if there were a non-legal variety as well!
To establish a defamation claim in Minnesota, a plaintiff must prove three elements: (1) the defamatory statement is communicated to someone other than the plaintiff; (2) the statement is false; and (3) the statement tends to harm the plaintiff’s reputation and to lower the plaintiff in the estimation of the community.
Many alleged acts of “defamation” fail under this legal standard on the second two elements. In other words, something is said about someone but it may not be false and, even if it is, the person/business defamed cannot prove any evidence of damages (which, in the business context, typically are evidenced by lost business).
Believe it or not, I’ve been accused of defamation on occasion. As the regular readers of this blog know by now, I don’t pull punches with my words. If something is rotten in Denmark, I won’t hesitate to draw everyone else’s attention to the stench, and I’ll be honest, my intention is to lower the reputation of the wrongdoer. However, the folks who accused me of defamation failed to recognize the second element of the legal test for a defamation claim; namely that the statement is false. If something negative is said about someone and it is true, even if it harms that person’s reputation, that statement does not constitute defamation.
In the business context, defamation claims typically center on the third element; i.e., whether the defamed party suffered damages. This can be an extremely difficult task to prove in that the potential plaintiff must show evidence of damages, which usually take the form of lost business/lost profits, each of which are challenging matters to prove in a court of law.
The methods for dealing with a defamation claim depend on the nature of the defamatory statement(s). Traditionally, the defamed party’s attorney sends a cease and desist letter to whomever published the false statements, seeking a retraction and/or an apology under the threat of litigation. In the digital era, however, when the defamatory statement is published on the internet (such as within a blog or on Facebook), this method can result in the attorney’s cease and desist letter making its way on to the web, oftentimes to be mocked by the defaming party.
A few months back, my partner, Marshall Tanick , and I had a discussion on the radio about business defamation and it’s many issues. Click here to listen to that discussion.