Why would you ever want to talk to a lawyer unless you are in an unpleasant situation? It’s simple. You want an answer to a basic question: Do I have a case? Or, if you’re being sued, does the other person have a case?
The reality is that you’ll rarely get a clear-cut answer from an attorney. Why is that? Because the law is a reflection of society and its values and mores, which is pretty complicated to say the least. If everything was “black and white” there would be no need for lawyers, right?
Instead of a simple yes/no answer, a lawyer is more likely to advise you of the basic law relevant to the facts of your case and make general recommendations.
Enter the purpose of this post.
I’m going to outline general principles of California defamation law so that you can make a preliminary assessment of your situation. I use the word “preliminary,” because it is essential for an attorney to take a closer look at your particular set of facts. By no means should this post be taken to be a comprehensive treatment of defamation law in California. But at least you will have a basic understanding of the law, and as they say, knowing is half the battle.
Defamation is known by many names: libel, slander, disparagement, defamation of character, etc.. Many of the terms refer to the same idea, however; a statement which results in damage to a person’s reputation.
In order to prove defamation in California, a person must prove the following elements by a preponderance of the evidence, that is, it is more likely than not that each element is satisfied based on the evidence.
1) Defamatory – the statement must be defamatory. What does that mean? It has been defined as any statement that tends to lower the reputation of a person in the community, and/or subject that person to contempt, ridicule, or obloquy, or cause the person to be shunned or avoided. For example, what if a newspaper described a person as being “gay?” Would that be defamatory? Well, it depends on the community. Obviously, in most places in California and, indeed in the United States, such a statement would clearly not be defamatory. But what if that statement was written in a small town newspaper in the south, for example? In that situation, the statement may be found to be defamatory.
2) Statement of Fact – the statement must be a fact. Generally, you would not be able to prove defamation if the statement is an epithet, hyperbole, or is merely an opinion. That is not to say that all opinions are created equal. Some statements that appear to be opinions may be construed to be factual statements if the statement implies a provably false statement. This is one of the most misunderstood concepts relating to defamation law. I talk more about this here.
3) Falsity – the statement or statements must be false.
4) Of and Concerning – The average reasonable person must understand that the statement refers to the plaintiff, and not someone else, or a group of other people.
5) Publication – this element is a bit misleading. A statement can be published in a number of ways, including orally, in writing, by photograph, or other fixed means, and, it must be conveyed to a third party. So, if Mr. Jones comes up to you and claims that you’ve been convicted of a crime, it’s not going to count as defamation unless a third party heard the statement.
6) Causing – The statement must cause the plaintiff harm to his or her reputation.
7) Damages – Damages are presumed and therefore do not need to be proved if the statement is libelous on its face. A statement is libelous if it is permanent in nature. For instance, any statement on the internet would be libelous; any photograph that is defamatory would be defamatory as well since it is fixed. See what I mean?
A statement is libelous on its face if it is defamatory without reference to any other information. So if I write in a blog post that Mr. Jones robbed a bank last year, it is clear to all, without reference to any other information, that the statement negatively reflects on Mr. Jones’ reputation.
Damages must be proved if the statement is slanderous (oral) unless, the statement is slanderous on its face. A statement is slanderous on its face if it falls within the following categories: (1) charges someone with a crime; (2) indicates someone has a infectious or loathsome disease; (3) hurts someone with respect to their office, trade, or business; (4) imputes to a person impotence or a lack of chastity; and (5) any statement which causes actual damage.
8) Fault – There are different standards of fault depending on whether the plaintiff is deemed to be a private person or a public figure. Private person plaintiffs must only show negligence. Public figures must show that the statement was made with constitutional malice, that is, that the defendant knew the statement was false at the time it was made, or with a reckless disregard for the truth.
That’s California defamation law in a nutshell. There are MANY issues that I simply could not cover in this post. However, this is a good starting point for any person wanting to understand this area of law.
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Hey, Adrianos – Great post, but I think you’re missing an element of defamation here. A pretty big one . . .
Haha! I can’t believe I missed that one! Thanks for pointing that out. I’m going to fix that straight away.
A Defamatory Statement Must Be Of And Concerning The Plaintiff
Colloquium 1. The offer of extrinsic evidence to show that an alleged defamatory statement referred to the plaintiff even though it did not explicitly mention the plaintiff. 2. The introductory averments in a plaintiff’s pleading setting out all the…
Hello, I am wondering if I have due cause to file a suit against a firm that said I was a illegal taxi service when in fact I have my business license under a private driver. This gentleman sent out a email to the hotels that I work for stating that I am illegal and to call the police on me if they see me dropping off passengers at their hotel. Like I said before, I have my business license for personal transportation in which I have the right insurance coverage. I am not a cab which has to have proper advertising including cab company’s name and phone number along with their cab number. He has sent out numerous of emails to hotels and Restraunts stating do not use me. He is one of the head people that regulates taxi cabs. This gentleman has made my life hell. I am a sole proprietor just trying to make a living. Can he do this to me? Thank you, Paul.
My daughter contacted my boss at work nd stated by I had been tampering with my bosses lunches for months. She said I had been putting things from dog feces to dog urine in her food. . Currently I am on vacation..I have not been able to get my boss to hear my case..at this time she has made it clear she believes my daughter.
I have an ex friend/ current neighbor that went into my work place and made up false accusations about one of our other neighbors. Stating that I was telling my ex friend what medications our other neighbor is on. Which is completely false. Because of this complaint I just got suspended from work until they investigate this complaint. IF I get fired because of these lies, do you think I have a case to sue her? I dont understand why someone would want to hurt me being a mother of 2 on one income. I am so hurt and pissed off at the same time! Not sure what i should do in this situation. To me this is all “hear say” and there is no actual proof on her end that I said those things.
My fiancé recently got his background check in from a new employer. It shows a charge that was never filed and it says he was arrested which he never was. Isn’t this defamation on the filling police department against him?
Would I have a case if I am being spoken of on group pages on fb, tagging my name and screen shotting my profile with my face on it, slandering my name and accusing me of theft that there is no proof of?
Do I have a Case of Defamation if I was forced to be Broke and Homeless because of the Judicial System handicapping me from getting Jobs to support myself and making a Living Wage?
Do i have a case if my ex fiance is telling lies to his current wife about me and she is now harassing me of false accusations and treating me on social media, Causing me anxiety and having to take time off work.
Hello. I am the eldest child and spokesperson for my father, a famous racing personality. As such, I am responsible for the preservation of his legacy. I sometimes have Tom make decisions regarding the use of his name/likeness that may be unpopular. I have done so recently, and the man has posted on Facebook extremely disparaging remarks about me and downright lies because I will not consent to his insistence to use my fathers legacy.
I am unable to defend myself because he has blocked me. I obtained copies of his posts from a family member who shared them with me.
I need guidance please
My daughter was looking for hair products on Amazon one night and she stumbled upon her picture posting an advertisement for a wig. She never purchased anything from that company we did not even know they existence. We contacted Wink news they contacted Amazon and that picture still there on that advertisement. Now that’s a picture my daughter posted on Instagram in February.
What should we do now? Please help us
I believe I have a valid case of DOC, due to my immediate next-door neighbor, in the presence of one of our local Sheriff deputies, calling me a “Child Molester”, in an attempt to discredit my reputation, witth me being a former employee of the very same dept from more than 30 years ago. I did not personally work with the deputy that was at my home, but the attempt, in my opinion, was to create doubt in the deputy’s mind as to who he was really dealing with. I am personally filing a DOC suit against my neighbor, and will try this myself in civil court in San Bernardino County, as I have not only the testimony of the deputy himself, but also 2 other neighbors who were present at the time of the offense.