Gossip. We all do it. There is just something about hearing and discussing juicy tidbits of information that gets us all excited. Admit it...most of the time gossiping makes us feel better about our own lives. And celebrity gossip? Even better! Sharing stories about which celebrity slept with whom, who does drugs, and who got their side chick pregnant is
part of everyday life. People have made lucrative careers out of dishing out the latest celebrity gossip.
Think, for a moment, about what it feels like to have people talking about you and disseminating your personal business to others. How does it feel to have people talking about you behind your back? What if what they are saying about you is nowhere near the truth? What if, because of the gossiping, you can no longer go certain places? What if the gossiping causes you to lose your job? Your spouse? Your sleep? Your personal life has been affected and maybe even your career. What can you do? What recourse do you have? Must you now simply go into hiding, hanging your head in shame?
Defamation is the legal cause of action involving injury to one's reputation. If someone has spread untrue statements about you, to the point that you have been damaged (I'll get into what exactly is meant by "damaged" in a minute), you may be able to bring a claim against them in court for defamation. Now before you go running to your nearest lawyer to sue that girl at the club who told her friends that you looked like a patat in your freakum dress, hold on. To bring a claim of defamation against someone requires that you meet and prove certain criteria.
It is important to note that defamation is governed by state law, so each state may require different criteria to succeed on a defamation claim. For the sake of this article, I will discuss defamation in general terms and point out certain distinctions as they apply in New York.
Generally speaking, to succeed on a claim for defamation, one must prove the following:
o The defendant published the statement. "Publish" in this context means that the defendant (the person who made the statement) uttered or distributed the statement to at least one person other than the plaintiff (the person about whom the statement was made). Defamation can take the form of libel (written defamatory statements) or slander (spoken defamatory statements). So, in other words, this requirement can be met by simply talking to one other person.
o The statement is about the plaintiff. Keep in mind that to satisfy this requirement, you do not need to name the plaintiff explicitly. If there is enough identifying information such that those who know the person will recognize that the statement is about him or her, then that is sufficient.
o The statement harmed the reputation of the plaintiff. Here, the plaintiff has to prove that the statement(s) caused more than just ordinary hurt feelings or embarrassment. Generally speaking a defamatory statement is a false statement of fact that exposes a person to hatred, ridicule or contempt, lowers him or her in the esteem of his or her peers, causes him or her to be shunned, or injures him or her in his or her business or trade. As such, statements that are purely opinions, which cannot be proven true or false, cannot form the basis of a defamation claim.
o The statement was published with some level of fault. This means that the person who made the statement did so negligently or or purposefully with malice (bad intent).
o The statement was published without any applicable privilege. Depending on what information the defendant relied upon in forming the statement and what he or she published, certain privileges may be available. If any privilege is available, then this requirement will not be satisfied.
An important distinction that is made in defamation cases is the difference between private figures and public figures. This distinction determines the level of proof that must be met. For instance, New York distinguishes between public figures, limited-purpose public figures and private figures. For the sake of time and so as not to bore you to death, I will not get into the intricacies of these distinctions. What constitutes a "public figure" is determined by the law of that state, so keep in mind that just because you are the most popular person on the scene does not mean that you are a public figure for the purposes of a defamation claim.
Now, as promised, I will elaborate on the damages portion of a defamation claim. Generally speaking, the plaintiff must show actual damages, which include tangible things such as losing your job, losing money, etc. as a result of the defamatory statement(s). Additionally, damages can take the form of mental anguish or suffering, depending on whether your state allows for such damages.
Some states, such as New York, recognize something known as "per se" defamation, where damages are presumed and do not have to be proven, if the defamatory statements relate to the following topics:
o Cast doubt upon a person's professional character or standing;
o States or implies that an unmarried person is unchaste - meaning that an unmarried person is sexually active and/or sleeps around;
o States or implies that a person is affected with a sexually transmitted disease; or
o States or implies that the person has committed a crime of moral turpitude - meaning that the person has committed theft or fraud.
If a plaintiff succeeds in proving defamation, they are entitled to receive compensatory damages - money to compensate for the wrong that has been done. In some limited circumstances, and depending on how badly the plaintiff was damaged, punitive damages, designed to punish the defendant, may be awarded as well.
I do not want you to think that defamation claims are cut and dry. On the one hand, a person's freedom of speech must be taken into consideration. On the other hand, the preservation of one's reputation must be upheld. As such, these type of claims rely heavily on evidence to prove damage to one's reputation. Merely stating that someone has hurt your feelings or temporarily embarrassed you, without any supporting evidence, will not suffice.
So how does all of this affect you? What is the point I am trying to make? Basically, WATCH WHAT YOU SAY AND WRITE ABOUT ! In this day and age, we are all critics - writing blogs, Facebook posts, conducting interviews, etc. As the saying goes, opinions are like ass holes - everyone has one. But when you start talking about facts with respect to anyone, you need to be careful about what you say and from where you are getting your information. What you may think is a harmless statement about someone, may be completely damaging to them. It could mean that they lose their job, or even worse, their dignity.
About Melissa P. Bernier, Esp.
Melissa P. Bernier, Esq. is the principal and managing attorney for Bernier Legal, LLC a HAY Online Partner and she's the Legal expert for Haitianbeatz.com. She is so integral in many entrepreneurs business lives with her knowledge of New York law. Member of the New York State Bar; New York County Lawyers’ Association; Metropolitan Black Bar Association; and the Brooklyn Bar Association; Black Entertainment and Sports Lawyers’ Association (BESLA); Association of Black Women Attorneys; and the Haitian American Caucus. Melissa’s love for being an attorney comes from the field’s versatility and extensive ability to truly help people. Most importantly, it allows her to fulfill her life’s purpose.