December 12, 2012
This page is separate from the Defamation of Character Quick Tips, because 100% of the information on it is WRONG advice we found in online Question & Answer columns, or worse, law firms' websites. It seemed worth writing this page, because this is all libel and slander mis-information we found on the Web. (We didn't copy the other web sites word for word; we don't want to get into copyright squabbles, and the point is to correct the misinformation anyway, not to bash other web sites.)
Q: If I write a novel based on my life story growing up in a small town, and I change the names of the people, can I be sued for libel?
Wrong A: Not as long as you change the names of the characters, and write at the beginning of the book "All characters in this book are fictitious, and any resemblance to actual persons is coincidental."
Right A: Are you kidding??? If you grow up in a small town of 1,500 people, and you portray a character in a way that harms their reputation, and they sue ... where do you think the lawsuit is going to be filed? In that exact county, where half the jury is going to know exactly who is being described. The other half is going to know it once the plaintiff's lawyer calls a few witnesses to the stand. No small town jury is going to buy that legal theory. (Almost as bad is when you've written an accurate but negative portrayal, but you can't prove your assertions, and the plaintiff claims you portrayed them in a false light.)
Q: My boss told a prospective employer that I was a "lousy employee." Can I sue for slander?
Wrong A: No, because that is a statement of opinion. If your boss had falsely said that you were an embezzler, then you would have grounds for a slander lawsuit.
Right A: "Opinion" is indeed protected up to a point. Personally, we would not want to be standing in front of a jury of working Americans, as the boss's lawyer, explaining that calling him a "lousy employee" had not harmed his reputation, or that "lousy" was just opinion. "Lousy" implies that the employee was a substandard performer, or outright incompetent, or disobedient/belligerent, or didn't follow orders. "Lazy employee" on its own might be just opinion, but "substandard performer" is potentially measurable and that is what separates statements of fact from opinions. Most judges would lay that out for the jury, and we suspect some juries would return a verdict in favor of the employee.
Note: If you've signed a waiver with a prospective employer, which includes language holding them harmless against defamation in references, that might be another matter.
Q: My neighbor's been falsely telling people I'm an embezzler. Since my state is a "per se defamation" state, that means I win automatically, right?
Wrong A: Yes, as long as your state defines certain words as defamatory "per se" (intrinsically defamatory), and "embezzler" is listed as a defamatory term, and the defendant cannot prove you are an embezzler, then you will win the case. [In a "per quod" state you have to show effects beyond the words, i.e. actual damages.]
Right A: Yes and no. Yes, in a per se defamation state, the judge may instruct the jury that if they believe your neighbor actually told people you were an embezzler, and the defendant cannot prove you are an embezzler, then they must return a verdict in your favor.
But the judge won't tell the jury how much to award you in damages. So the jury can award you $1.00 and go home to dinner. In which case you've won the battle but lost the war. You might even be worse off, if the case gets publicity. Regardless, you're no better off than if your state were defamation per quod.
Q: I didn't know I was repeating a lie. Does that mean I'm not guilty of defamation?
Wrong A: Yes.
Right A: No! We frequently run across the theory of "innocent dissemination." ("Safe conduit" is a similar theory.) The media has some specific defenses to repeating false rumors (the "fair reporting" and the "newswire" defense), but these probably won't help you unless you are somehow in the job of distributing news. The repetition of slander is usually just as "actionable" as the origination. Libel does have a few solid innocent dissemination defenses, e.g. no sane court is going to rule that the newspaper delivery kid is guilty of libel. Generally, if you repeat or publish a defamatory statement, it's up to you to show the court why you're not guilty of defamation.
Fighting Slander author Nicholas Carroll is an expert witness and consultant on defamation of character.