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Focus on the Law: Defamation

By Sharon Frankenberg,
Attorney at Law

Often referred to as “defamation of character,” defamation is the issuance of a false statement about another person which causes that person to suffer harm.   “The essential element of a cause of action for defamation is a false and defamatory statement which caused injury to the plaintiff’s character or reputation.” Tennessee Practice, Vol. 23 (2009-2010 ) p.540.   “Libel and slander are both defamation;  libel is written and slander is spoken.” Id.   Under Tennessee law, a lawsuit for defamation must be filed within one year.  This one year statute of limitations begins to run on the date the publication is first distributed in the county where the lawsuit is brought or when the slanderous words were spoken.  Generally speaking, the lawsuit may be brought in the county where the defendant resides or where the events giving rise to the claim of defamation occurred.

“Defamation per se” occurs when someone utters words that are deemed slanderous on their own and are presumed to cause damage to the plaintiff.  For example, accusing someone of committing a crime of moral turpitude (adultery, fornication) , claiming someone has a sexually transmitted disease or attacking a person’s professional character or standing may be considered committing defamation per se.

In order to prove a case of defamation, you must show the following:

1. Defendant’s publication of a statement;

2. With knowledge that the statement was false and defaming to the plaintiff;

3. With reckless disregard for the truth of the statements or with negligence in failing to ascertain the truth of the statement; and

4. Plaintiff  has actual damages.

The plaintiff may ask for compensatory damages to fully compensate himself or herself for the loss or injury caused by the defendant’s conduct.  The goal is restore the plaintiff to the position he or she would have been in had the wrongful conduct not occurred.  If actual malice is proven in a defamation action, punitive damages may be awarded.  Punitive damages are typically more that the amount of the compensatory damages and are specifically designed to punish the defendant.

You may have heard the expression that the “truth is a defense.”  That is absolutely correct when it comes to defamation.  Other defenses which may prevent recovery by the plaintiff include filing his or her lawsuit too late (after the one year statute of limitations has run) and privilege.  Examples of privileged statements include those made by witnesses in court, arguments made in court by lawyers, statements made by legislators on the floor of the legislature or by judges while sitting on the bench.  No matter how false or outrageous, privileged statements cannot support a cause of action for defamation.

Under the First Amendment of the United States Constitution, public figures cannot succeed in bringing actions for defamation without proving that the statement about them was made with “actual malice.”  That means the person making the statement knew the statement was false or issued the statement with reckless disregard for the truth.  Public figures are not only politicians and celebrities.  A person can become an involuntary public figure as a result of publicity, even though they did not want or invite the public attention.  For example, people accused of high profile crimes, guilty or not, may be considered public figures on the basis of the notoriety associated with their case.  They may be unable to succeed in pursuing compensation for defamation.  “Defamation, Libel and Slander Law,” Aaron Larson (August 2003). www.expertlaw.com/library/personal_injury/defamation.html

Obviously this article does not cover every issue which might arise.  You should always contact an attorney to get advice and assistance with your unique situation.

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