Sticks and Stones

Defamation is a false statement communicated to another person that injures a person’s reputation or good name. Lawsuits for defamation have a long history in the United States, even before the Revolution. Claims for defamation fall between the right of free speech of citizens and the acknowledgement that misstatements and lies can severely damage a person’s life, job, and reputation. All defamation actions require the following items:

1. That the defendant made a statement about the plaintiff. If the statement was made in writing, it is called libel. If the statement was made orally, it is called slander.
2. That the defendant published the statement. Basically this means that the defendant told or communicated the statement to at least one other person, other than the plaintiff.
3. That the statement was false.

The first distinction in defamation cases stems from the decision of the United States Supreme Court in the case of New York Times v. Sullivan. In that case, the old common law rules for defamation were altered because of the First Amendment protection for free speech. This case and subsequent cases established three general types of defamation claims–those involving private figures in matters not of public concern, those involving private figures in matters of public concern, and those involving public figures or public officials. For defamation involving private figures in matters not of public concern, and private figures in matters of public concern the plaintiff must, in addition to 1, 2, and 3 requirements above, show the following:

4. That the defendant knew or in the exercise of ordinary care should have known that the statement was false (negligence standard).

For public figures or public officials, the plaintiff must instead show the following:

4. That the defendant knew the statement was false or with reckless disregard for whether it was false or not (actual malice standard).

The next distinction that must be made is whether the defamation is “per se” or “per quod.” Libel or slander “per se” occurs when the false statements are obviously defamatory when considered alone without any explanation or context. These types of obvious defamation that constitute libel per se are (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person’s trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace.

Similarly, the courts in North Carolina have found slander “per se” where there are (1) accusations that the plaintiff committed a crime involving moral turpitude; (2) allegations that impeach the plaintiff in his or her trade, business, or profession; or (3) imputations that the plaintiff has a loathsome disease.

Libel and slander “per quod” covers false statements which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium and explanatory circumstances. There is also a form of libel in North Carolina that occupies a middle level between “per se” and “per quod” where the statement is susceptible of two meanings–one that is defamatory and one that is not.

The distinction between “per se” and “per quod” generally goes to the types of damages that are recoverable. “Per quod” defamation allows the plaintiff to recover special damages such as lost income, and actual damages such as loss of reputation in the community. “Per se” allows these damages and presumed damages such as mental or physical pain or suffering that don’t need to be shown with any particularized evidence. (although for “per se” defamation where it is a private figure and matter of public concern or public figure, presumed damages require malice and not negligence). In addition, punitive or punishment damages are recoverable if done intentionally or with malice.

-Bradley A. Coxe is a practicing attorney in Wilmington, NC who practices in Personal Injury, Car Accidents, Medical Malpractice, Contract and Real Estate disputes, and all forms of Civil Litigation.  Please contact him at (910) 772-1678.