Suing for Defamation in a Digital World

In today’s increasingly digital world, our computers and the platforms on them comprise an important mode of communication. The use of these platforms varies from socialization, to learning, to the sharing of ideas and opinions. As we have all experienced, not all comments left on online platforms are positive; when these comments are negative and directed at an individual, that person may consider seeking redress in the form of a lawsuit alleging defamation.

While it is tempting, a lawsuit for defamation is not generally advised. Proving liability for defamation is difficult and presents significant hurdles for a litigant (the person bringing the lawsuit) to overcome when seeking damages for defamation.

Generally, defamation falls into two categories: libel (written defamation) and slander (spoken defamation).  Regardless of whether you are seeking to prove libel or slander, as the proponent of a defamation claim, you must be able to prove not only that the words spoken or written about you were false, but also that the person uttering them knew that they were false. Suing for an opinion is “non-actionable,” meaning that the Court may dismiss a claim for defamation if it is based on an opinion.

Further, there is a one-year statute of limitations for defamation claims, which means that a lawsuit for defamation must be instituted within one year from when the supposedly defamatory words were written or spoken. Compared to many other types of claims, which often have three- or six-year statutes of limitation, this is a very short timeframe within which to bring a claim. If a litigant is serious about suing for defamation, he or she must be sure that they sue within one year of when the words were written or spoken, not from when they found out about the statement.

Finally, even if all the other elements are met, it is required that a defamation claim include specific damages suffered by the alleged written words or statements, which is very difficult to do.

When a litigant brings a lawsuit for defamation by way of a Complaint, the Complaint must allege the “particular words complained of.” In other words, a Complaint for this type of lawsuit must set forth exactly what was said or written that the litigant believes would constitute defamation. It will not be enough for a litigant to provide anything less than exactly what was said or written or to paraphrase, because this forms the basis of the lawsuit. Here, a claim that only generally describes the “complained of” words will not suffice.

Finally, the United States maintains a very permissive stance with respect to free speech. This can pose further obstacles to litigants. The free speech rights of its citizens are carefully guarded, a fact the law reflects. For example, in New York, if you are suing for defamation against words posted as part of a business review, you must be careful not to breach anti-SLAPP legislation. These “strategic lawsuits against public participation” are laws put in place to discourage the filing of a Complaint merely so that the litigant can dissuade or prevent the reviewer from reviewing again, as opposed to filing a Complaint based on actual alleged defamation. These “SLAPP suits” are not viewed favorably by New York’s legislature or Courts. Additionally, New York’s Civil Procedure Laws & Rules maintain laws that are specific to the Courts dismissing or summarily discharging SLAPP suits. If you sue for defamation and your lawsuit is deemed a SLAPP suit, you may find yourself paying attorneys’ fees to the person who left the review, thanks to mandatory provisions in New York’s Civil Rights Law.

While advancing a defamation lawsuit may present many uphill challenges, the law also offers many tools for defending yourself against allegations of defamation. J&G Law, LLP can help you should you find yourself faced with a defamation lawsuit.

This is not intended to be legal advice. You should contact an attorney for advice regarding your specific situation.