William Shakespeare, Othello, Act III, scene iii.
When I started writing about defamation a couple of weeks ago, I quickly realized that it was much too complicated of a topic to stuff into one large blog post. It’s not just complicated but it is also confusing with technical issues that can make or break a case but are not easily understood.
One major element of a defamation case is determining if the defamation is "per se" or "per quod". The easiest case to prove is the defamation per se. The hardest, by contrast, is defamation per quod. Here’s the difference in pratical terms. The courts have decided that there is a certain set of words that is just so bad that just merely uttering the words aloud in front of someone other than the Unhappy Person (or printing them), that the reputation of the Unhappy Person must be damaged. Those words are known as "defamation per se." All other words are "defamation per quod." The application of the difference is in what the Unhappy Person must prove to be successful.
Burden of Proof
Let me back up here for a minute. In every lawsuit, the Unhappy Person bears the "burden of proof". When an Unhappy Person files a lawsuit, she essentially says to the court, "I’ve been wronged. MeanGirl did X to me. Because of MeanGirl doing X, I incurred damages. I deserve compensation." These are called the elements of a cause of action and the Unhappy Person has to prove each and every element by a "preponderance of the evidence." If you view the scales of justice, preponderance of the evidence is tipping the scales just slightly in one direction. In a civil case, for almost every element, Unhappy Person needs to prove each element just by the "greater weight of the evidence."
The "burden of proof" is different in a criminal case. In a criminal case, the State/City/County (Unhappy Bunch of People represented by one) must prove each and every element "beyond a reasonable doubt." (not beyond a shadow of doubt as many people think. Beyond a shadow of a doubt is a much tougher standard than beyond a "reasonable doubt". In other words, you can have unreasonable doubts and still find a person " guilty" whereas if the standard is "beyond a shadow of doubt" you would have to find the person not guilty.) Not to get off track here, but there is no standard called "beyond a shadow of doubt." That is purely a fictional creation.
Differences in Proof
Back to the difference between defamation per se and per quod. In a defamation per quod case, the Unhappy Person has to prove alot more elements.
|Defamation Per Se||Defamation Per Quod|
|MeanGirl made the statement||MeanGirl made the statement|
|To someone other than the Unhappy Person||To someone other than the Unhappy Person|
|The statement was false|
|The statement was made with malice|
|The statement defamed the Unhappy Person*|
|The statement caused damage|
|The amount of the damage|
The court usually determines that the statement is defamatory per se so that isn’t an element that you have to prove. In a defamation per quod case, the jury decides if the statement actually is defamatory. The Unhappy Person must prove it. Also and most importantly, in a defamation per quod case, the Unhappy Person must show what is called "special damages." In the law, special damages are pecuniary or monetary losses incurred as a result of the or because of the defamation. If there is no monetary or pecuniary loss stated specifically (i.e., Unhappy Person failed to sell 2500 books as a result of the defamatory statements made by MeanGirl reviewer), the Unhappy Person won’t even be allowed to proceed with the suit. The judge will dismiss it even if the statement was defamatory.
Emotional or physical harms are not considered to be "special damages" so if someone’s feelings are hurt, even to the extent that it causes sleepless nights or loss of weight or mental anguish, if there is no corresponding "pecuniary" loss, the Unhappy Person is out of luck. The Unhappy Person bears the "burden of proof" of showing the connection between the statement and the loss. For example, in the Lee case, she would have to show that any loss of profits were because of malicious and false statements made about her when the loss of profits could easily be attributable to her refusal to remove the copied material; her threats of lawsuits; her threats of negative statements made to the press; and so forth.
Defamation Per Se
Defamation per se is generally statements made in four broad categories. Statements made to a third party which impute one or more of the following are considered to be defamatory per se:
- criminal conduct (can’t be a traffic violation or a crime punishable by a fine but can be suggesting someone beats their wife, is a pedophile, driving while drunk, tried to kill someone, i.e., attempted murder)
- loathsome disease (HIV or other sexually transmitted disease)
- misconduct in one’s trade, profession or office, or (engaged in plagiarism, taking money as a bribe; sleeping with a client; or a single mistake that suggests a habitual course of conduct)
- sexual misconduct (some states define this as applying to women, i.e., a woman who is unchaste, but could be anyone engaging in adultery, even sleeping around or engaging in whorish behavior)
In the suit of Ramsey v. Fox News Network, Inc., 351 F.Supp.2d 1145 (D. Colo. 2005), the family of Jon Benet Ramsey brought a defamation suit against Fox News for news reports that the Ramseys characterized as suggesting the Ramsey family could be responsible for the murder of the young girl. The court dismissed the suit on the basis that the statements made by Fox News were not defamation per se. The statements in question were primarily the comments made by reporter Carol McKinley:
In dismissing the case, the court quoted the piece from Othella and recognized that the reputation of a person is a precious and valuable entity; however, when weighed against the Constitutional protection of free speech and the importance of free speech concluded as follows:
Plaintiffs may well have filed this case more for vindication than for money, and perhaps vindication is what they deserve. But they have a better chance for meaningful vindication in the court of public opinion through vigorous debate about the background and details of this heinous crime than by suing those whose reporting may arguably include some less than favorable inferences about them. Plaintiffs cannot have the public discourse playing field entirely to themselves.
Id. at 1154.
Next week I’ll address the media defendant, of and concerning a public matter, and malice.