What is Defamation Per Se in Personal Injury Law?

Defamation per se is a defamatory statement that is actionable. This means it can be a reason to sue the person who said it. If you’ve been hurt personally or professionally thanks to someone saying or writing something untrue about you, you may be able to take legal action.

Internet defamation, which involves false online statements made about individuals or businesses, is a growing concern. It relates to defamation per se when such statements cause harm without needing to prove actual damages.

Judges are aware of the recent rise of valid defamation cases thanks to the popularity of social media. In fact, one Justice recently expanded the parameters of defamation by finding people liable for not only their own defamatory posts but also for the comments made by others on their social media page if:

• They have actual knowledge of the defamatory material posted by the third party;
• There was a deliberate act not to remove the material, which can include inaction in the face of actual knowledge; and
• They have power and control over the defamatory content.

The judge ruled that we all have control over our own social media pages. As a result, if you invite untrue defamatory comments from others and fail to delete them within a reasonable time, you could be liable for those comments.

If you’ve been subject to this kind of unfair defamation, you may not need to prove actual damages under a defamation per se lawsuit. Find out how with this guide.

How to Prove Defamation Per Se

Statements that can reasonably be interpreted as having another meaning do not constitute defamation per se. In making this determination, courts like the Ohio Supreme Court have stated that language that itself brings one’s character into ridicule or contempt, or injuriously affects one’s trade or profession is libel per se, rather than defamation. Defamation claims require proving harm or damage, particularly how defamatory statements impact a plaintiff’s reputation.

The laws of each state define defamation but generally, a plaintiff who files a lawsuit regarding defamation per se must prove that:

• The defendant published the statement and it was read by at least one other person. Publishing content about someone online (via social media, for example), counts.
• The defendant identified the plaintiff by name, via an image, their name, or thought their characteristics.
• The defendant harmed the plaintiff’s reputation by using words defamatory on their face without any further information or context. This includes false assertions of criminal behavior, incompetence on the job, or sexual promiscuity.
• The defendant made a false statement of fact. In other words, what they said or wrote was untrue. Courts evaluate the context of the statement to determine whether it can be proven true or false.
• The defendant had some level of fault. A plaintiff who is a public official or public figure must prove that the defendant published the statement with “actual malice.” A plaintiff who is a private individual must prove they acted negligently.

Defamatory per se statements are inherently harmful and do not require additional evidence of damage to a person’s reputation.

What is a False Statement of Fact in Defamation?

A false statement of fact in defamation is found when it causes provable harm to a person’s reputation.

A defamation lawsuit can be brought only if the statement is an assertion of fact, not an opinion – because opinions are protected by the constitutional right of free speech.

Defamation Per Se vs. Per Quod

Some harmful statements fall into the category of defamation even if they’re false, such as slander per se and libel per se. This is known as defamation per se. The subject of defamation does not need to show any special damages in these instances. Defamation per quod claims necessitate extrinsic facts to establish how the statement causes harm to the plaintiff’s reputation. A defamation per quod case is different from defamation per se because the listener requires context for the statement to be proven defamatory.

KEY IDEA: Any statement where the words themselves are not harmful, but with extrinsic evidence become defamatory is defamation per quod.

Again, defamation per se includes se statements that are interpreted as damaging by themselves. In defamation per se cases, the words themselves incite contempt towards another individual.

Examples of Defamation Per Se in Court

Defamatory statements are inherently harmful and do not require proof of harm. Examples of defamation per se include saying someone has a contagious disease (when they do not), accusing someone of sexual misconduct, saying someone isn’t doing their job correctly, or claiming unjustly that an individual is guilty of a crime.

The Innocent Construction Rule in Libel Per Se Lawsuits

According to most Courts of law, a statement is non-actionable (not grounds for a successful lawsuit) when it has an innocent construction. This means that the Court must dismiss the plaintiffs’ complaint if the alleged defamatory statement as published has a reasonable, non-defamatory meaning.

The innocent construction rule also comes into play if the statement could reasonably pertain to someone other than the plaintiff.

Damages You May Qualify for in a Defamation Per Se Claim

In a recent high-profile case, damages were based on the number of people who see the defamatory content online, and factored in impressions to capture how widely it spread to assess its impact.

In cases of defamation per se, harm to the plaintiff’s reputation is presumed without needing further evidence.

Defenses to a Defamation Per Se Lawsuit

There are several common defenses to a defamation per se lawsuit. These include:

1. Truth: if a statement can be proved true, it is not actionable.
2. Opinion: if a statement can be shown to be an opinion, it is protected by the right to free speech.
3. Privileged: if a statement was made in a privileged (confidential) setting such as a judicial proceeding, it is not actionable.
4. Retracted: A retraction is a full and formal withdrawal of a prior statement. If a defendant is held liable even after making a retraction, the retraction usually greatly lessens the plaintiff’s damages.
5. Innocent construction: The meaning or subject of the statement is in doubt.

Time Limits to File Your Defamation Claim

There are strict time limits to file your claim. These limits vary between one and three years depending on the state in which you live.

In a defamation case, the statute of limitations begins on the day on which the defendant first said or wrote the defamatory words about you. Because time limits are what they are, you should reach out to a personal injury attorney today. It is much more affordable than you may think thanks to contingency fees, which are only paid to the lawyer if you win your case.

Find Legal Advice Through a Personal Injury Attorney

Defamation is a very complicated area of law because of the right of free speech we enjoy. However, you also have the right to not have someone spreading lies about you. If someone defames you and harms your reputation, the right course of action might be to file a lawsuit.

Under Illinois law, defamation is categorized into defamation per se and defamation per quod. Defamation per se involves statements that are inherently harmful, while defamation per quod requires proof of actual damage caused by the statements.

The best thing to do is to meet with a skilled personal injury attorney to see if you may have a defamation per se case.