California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

Comparing defamation and trade libel is like comparing apples and oranges. While both are similar (apples and oranges are fruit), they are fundamentally different in other ways.

One key difference between the two is with respect to the harm each is designed to address or protect. Defamation is meant to protect the reputation of the person, whereas trade libel is designed to compensate the plaintiff for pecuniary damage. The reason this distinction is critical is because " . . . trade libel requires pleading and proof of special damages in the form of pecuniary damages." Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3 547, 572. However, proof of special damages solely in the form of pecuniary damages is not required to plead and prove a cause of action for damages.

A second difference is that plaintiff is required to plead and prove that a disparaging statement is false in regard to trade libel, whereas in a cause of action the plaintiff is NOT required to plead that the statements are false in most cases. Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

Third, plaintiff may not recover damages for mental distress upon prevailing on a cause of action for trade libel. He or she is limited to the loss of pecuniary damages caused by the libelous statement or statements.

Understanding the differences between these torts will help you plan your strategy, whether you are the plaintiff or the defendant in a case.

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A less common but no less important defense to a cause of action for defamation is the defense of consent. If the defendant can show that the plaintiff consented to the publication of the alleged defamatory statement or statements, it operates as a complete defense. In other words, defendant wins.

Under what circumstances has the doctrine of consent been successful? Well, I'm glad you asked.

In one case a school superintendent was demoted and requested a statement of reasons from the school board. The school board did so in a confidential letter, which included the allegation that the superintendent had taken part in distributing fake election flyers. Apparently the superintendent was not pleased so he submitted the letter to a newspaper and the newspaper published the letter.. The court held that plaintiff' consented to the publication of the letter.

In other instances a person may consent to a third party or an organization investigating him and publishing its findings. This would constitute consent as well.

In any event, consent is a form of absolute privilege. While it does not come up very often, It is a total defense. Therefore it is important for any practitioner to be aware of it in case it appears in a fact pattern.

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You must demand a correction now.  Let me tell you why.

California law limits the amount of damages a defamed party can sue for in certain circumstances depending on whether they have first demanded a correction.  If a defamatory statement is made on a radio broadcast and/or published in a newspaper, you must demand a correction (of the radio broadcaster or newspaper publisher) within 20 days after learning of the slanderous/libelous comments, pursuant to Civil Code section 48a.

If you don't demand a correction within the applicable period of time you are limited to special damages.  This is potentially devastating because special damages generally refer to a quantifiable loss, e.g., loss of business profits, which is more difficult to establish than general damages.  It's especially a big mistake to blow the 20 day period if the defendant's statements were arguably made with malice because punitive damages are a "big stick" in defamation cases.  And trust me, you want to hold onto the big stick if you want to negotiate a settlement.

So it's clear by now that you need to demand a correction.  Do it now.

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