How one can prove defamation

Posted Jan. 09, 2011, at 7:27 p.m.
Last modified Feb. 02, 2011, at 12:02 p.m.

Q. What exactly does one have to do to prove that defamation of character has indeed happened? My character and reputation have been profoundly trashed by some vicious enemies to the point where I’ve been threatened subtly and have had things thrown at me in public. Would I be able to sue? Is defamation of character even a law today?

A. To answer your last question first: Yes, defamation of reputation remains a well-recognized and often litigated legal claim in Maine law.

Defamation is an umbrella concept that encompasses false oral statements, or slander, and false written statements, or libel, that harm another person’s reputation. In general, a person who makes a false statement about someone else may be held legally responsible for any actual damages to the other person’s reputation and the person may be required to pay punitive damages if the statements were made with malice.

Actual damages to one’s reputation must be proved, but damages may be assumed to have occurred if the false statement pertains to one’s profession or occupation, falsely accused another of a crime involving immorality (the false statement “Suzy is a thief” fits this category; falsely stating that Mike had an OUI would require proof of actual damages), falsely allege that the person has a loathsome disease (Ken has tuberculosis), or falsely accused the person of serious sexual misconduct (Jill had an affair with a co-worker).

There are specific requirements that must be proved:

  • That the statement was false (Alice said her carpenter stole $100 from her wallet).
  • That the person making the statement acted negligently in determining the truth or falsity of the statement or knew the statement was false (Alice did not check her wallet before she made the statement, and later found she still had the money).
  • That the statement was made to a third party (Alice told everyone on Facebook that the carpenter stole her money).
  • That the statement lowered that person’s reputation in the eyes of the community (people in town now think the carpenter is a thief).

Some types of false statements may not provide grounds for a defamation suit. Expressions of opinion are generally not actionable (i.e., in my opinion, Mrs. Jones is not a good teacher). In contrast, to be defamatory, the statement must be an assertion of a supposed fact (Mrs. Jones is not a licensed teacher). False statements about public figures, i.e., government officials, actors, sports figures, are not actionable unless the person acted with malice.

There are other instances when the false statement may be privileged if there is a societal interest in the subject matter of discussion. For example, a former employer may be free from liability for giving a false statement in an employment reference, provided that the employer did so in good faith.

Going back to your questions, you have reported being threatened and possibly assaulted.

There may be other legal action to take in response to such conduct, but these fall outside the concept of defamation.

As you can see, defamation actions can be complicated. You may want to consult with an attorney about your specific circumstances if you believe you have a case.

This column is a service of the Lawyer Referral and Information Service of the Maine State Bar Association. Its contents are a general response to the question and do not constitute legal advice. Questions are welcome. E-mail AAL@mainebar.org, describe your question and note you are a BDN reader. Written questions mailed to “Ask a Lawyer,” Bangor Daily News, P.O. Box 1329, Bangor 04402-1329, will be forwarded to the LRIS.

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