Mr. Knievel, Pursuant to Your Request I

¶ … Mr. Knievel,

Pursuant to your request I have reviewed the circumstances surrounding your concern as to whether you have a viable case for defamation. Please be advised that this analysis is based entirely upon the facts presented by you and that any variation in the actual facts can alter the situation entirely or mitigate the possible damages.

Please be aware that the area of defamation is a difficult one and that the elements of your claim are dependent entirely upon whether or not the defendant in this case is considered a public or private figure. Also, you should be aware that, unlike many causes of action, defamation laws vary significantly from state to state, so being full advised as to the law in your particular jurisdiction is essential.

Whether the defamation in your case is one of libel, a written statement, or slander, an oral statement, the statement itself must be false. A particular sensitivity or the revealing of an embarrassment does not qualify as defamation. The statement must be false and must be provable as such.

Before discussing the generalized defamation case, I should alert you to a hybrid form identified as "defamation per se." There are a limited number of jurisdictions that do not recognize defamation per se but, in those that do recognize it, it is a type of statement that is considered so intrinsically damaging that there is no requirement that one must prove that he has suffered damage or injury to prevail on the action. Generally speaking, statements accusing someone of a crime, imputing serious sexual conduct, casting adverse comment on someone's business practices, or stating that someone has a disease are considered to be defamatory per se.

Returning now to the generalized discussion, if the statement in question has not been published there is no cause of action. Publication means that the statement must have been heard or read by at least one third person. Obviously, the extent of the publication impacts not only on the viability of the claim but also on the measure of the damages.

One of the unique features of the law of defamation is that the status of the victim has a direct impact on determining whether a statement is considered actionable. In the case of a private figure it is enough that the statement be made negligently but in the case of a public figure the false statement must have also been made while the defendant, that is, the person making the statement, was acting with "actual malice" toward the victim. "Actual malice" has been defined as publishing something that the defendant knew was a lie or at least with a total disregard for whether the statement was true or not.

A final element that must be examined is the issue of damages. Demonstrating that one has been damaged by the defamatory act is essential but determining what constitutes damage varies from jurisdiction to jurisdiction. In many jurisdictions, one must only prove "mental anguish" while in other jurisdictions one must prove that he has suffered a loss to his property, trade, profession or occupation. Understanding the damage standard in your jurisdiction is essential to any determination as to whether to go forward with any action. Litigation is expensive and time consuming and you must make an informed decision as to whether going forward is worth the effort.

Please be aware that there is also the possibility that the defendant in your action might be subject to a special type of damages known as exemplary or punitive damages. If your jurisdiction permits such damages to be awarded, proceeding with this action could be more profitable; however, in order to prevail you must be able to prove that the statement was particularly egregious.

As in all legal actions, there are available defenses. The most obvious defense is that the statement was the truth. Truth is an absolute defense to any claim of defamation.