How Much Is My Defamation Case Worth?

Don't let a defamatory remark define you. Prove these different kinds of damages and send a clear message to the defendant.

While most personal injury claims arise when one person's accidental conduct (negligence) causes harm to another, defamation occurs when someone intentionally makes a false statement about you that damages your reputation.

Any living person (and many business entities) can be defamed. As with most injury-based claims, the quality of evidence you present at trial determines the value of your defamation case. Defamation cases are tricky because so many variables can affect the outcome. (Cases about public concerns are more difficult to win.) Simply put, your defamation case is worth what you can prove you lost, plus what you had to spend as a result of the defendant's false statement.

Defamation Damages

In a civil court case, "damages" is a legal concept that refers to the losses suffered by the person filing the lawsuit (the plaintiff). There are usually five types of damages awarded in defamation cases:

• presumed damages

• special damages

• mental anguish damages

• nominal damages, and

• punitive damages.

The most common damages resulting from defamation involve injury to the victim’s profession, such as being fired or having to shut down a business. Proving your damages will depend on the content of the false statement. In defamation per se cases, damages are presumed. If the communication is not defamatory per se, the plaintiff must prove special damages.

Defamation Per Se & Presumed Damages

Defamation per se is a false statement that most people can agree is harmful, and falls into four categories:

• involvement in criminal activity

• contagious disease,

• serious sexual misconduct, and

• extremely unprofessional behavior.

Presumed damages are awarded for injury to the victim’s reputation in defamation per se cases. These damages are calculated based on the presumed harm the victim’s reputation sustained as a result of the defendant’s false remark.

These damages are calculated based on the presumed harm the victim’s reputation sustained as a result of the defendant’s false remark.

Special Damages For Economic Loss

Special damages compensate the plaintiff for economic losses resulting from a defamatory statement. These include:

• lost past and future income

• lost earning capacity

• lost employment benefits

• medical bills for treatment of mental anguish, and

• medical bills for physical injury resulting from mental anguish.

A plaintiff who proves their defamation case can always recover special damages. Special damages for business losses are typically calculated by measuring the difference between the plaintiff’s actual earnings after the false communication compared with their projected earnings had the defamation not occurred. These numbers can be proven by looking at the plaintiff’s past earnings and what other people in that profession with similar education and training are currently making.

Damages For Mental Anguish

Damages for mental anguish are awarded to compensate the victim for humiliation, anxiety, and distress caused by the disparaging statement. Mental anguish damages are usually difficult to recover because they’re so hard to prove. However, any physical manifestation of the stress, such as a stomach ulcer or severe insomnia, will boost your potential for recovering these damages.

Nominal Damages Are a Moral Victory For the Plaintiff

Nominal damages can be as low as one dollar, and are basically the court’s way of warning the defendant. If the offensive behavior was not defamation per se and special damages aren’t proven, nominal damages are appropriate—often accompanied by an order that the defendant retract the statement and publicly apologize.

Punitive Damages Punish & Deter

Punitive damages are typically available when the plaintiff can show the defendant made the defamatory statement with "actual malice." Actual malice means the defendant intended to harm the plaintiff or at least acted with reckless disregard as to whether plaintiff would suffer harm from the false statement. Punitive damages punish the defendant for malicious behavior and (hopefully) deter the defendant and others from engaging in similar conduct.

You Must Mitigate Your Damages

Plaintiffs are required to "mitigate" their damages. This means that if you could have gotten a lower paying job, but didn’t, the defendant does not have to pay damages for what you would have earned in the lower-paying position. You should also take reasonable steps to prevent the falsehood from spreading beyond control.

These days, a defamatory publication is more likely to occur online than anywhere else. Given the indelible nature of internet posts, cleaning up the mess from a disparaging remark is practically impossible. (Imagine applying for jobs after a defamatory post about you has gone viral.) Even if the defendant issues a retraction, internet users are more likely to spread the hurtful part of the story than a defendant’s apology.

With the emergence of “fake news” on social media, there are plenty of people who will share "facts" without inquiring into their veracity. That often leaves little hope that a defamation plaintiff will be able to do damage control without extensive expenditures of time and money. However, when a plaintiff proves special damages, the court often awards the cost to repair reputational injury. In fact, there are services for this exact type of damage control, called "online reputation management."

By Leah Easterby

Published: Apr 3rd, 2019