This post addresses a unique aspect of defamation law, specifically how a plaintiff whose character or reputation has been defamed can recover damages without proof of actual damage to his or her reputation.
As a father of three sons, I always got tickled by the Hyundai Sonata commercial depicted above, although I’d bet my former next door neighbors appreciate it even more than me. You may recall the very patient neighbor finally suggests to the inquisitive little boy, “Why don’t you go ask YOUR Dad? (click link for commercial). Humans have an instinctual need to understand things, particularly things that seem counter-intuitive or are exceptions to general rules. As lawyers, this instinct is heightened to say the least.
As noted by Aaron Hall in this blog post, Minnesota’s defamation law provides, “Defamation affecting the plaintiff in his business, trade, profession, office or calling are defamatory per se and thus actionable without any proof of actual damages.” Most other state’s common law of defamation provides similar presumed damages recoveries for a defamation per se, as opposed to a defamation per quod. However, as noted in this blog post by Dancing with Lawyers, not all state laws provide for a presumption of damages when the statement is a defamation per se.
Defamation, Two Types: Libel or Slander:
As stated by the Court of Appeals in Parrish v. Allison, the difference between libel and slander can be described as follows:
Defamatory communications take two forms: libel and slander. Libel is the publication of defamatory material by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed word. Slander is a spoken defamation. (Parrish v Allison from 2007 is reported here).
It should also be noted that the various state laws or rules may be applied differently for slander (spoken words that damage) and libel (written words that cause damage to reputation). Generally speaking, because the written words are with us longer, the law provides greater protection for victims of libel.
Defamation Per Se /or/ Per Quod – What is the Difference?
The distinction is that the defamation per se is defamatory standing alone. For example, the newspaper falsely reports, “Dr. Jim Jones got sued over a dozen times and lost his medical license in Missouri before coming here to practice.” Whereas, a defamation per quod requires the reader or hearer to associate other evidence to the statement to make it defamatory. For example, a news article or a FaceBook / social media posts suggests that an orthopaedic doctor in Town X was reportedly intoxicated when he was called off the golf course last Saturday to perform an emergency surgery, but does not name the doctor. As it turns out, there are only two orthopaedists in small Town X, the other is a female in a wheelchair (who does not play golf), and the only golf course in town is a male only club.
Because the reader must associate other evidence, namely knowing that there are only two orthopaedists in Town X, etc., the reader then associates the male orthopaedic doctor with performing a medical operation while intoxicated, does not immediately discuss it with anyone, but in the future refuses for anyone in her family to see anyone in the local orthopaedic practice, instead leaving town for such services, and in the future repeats the story she heard numerous times in private when the subject of a broken arm or leg comes up in the community. Because the court may classify the story about the male intoxicated golfing orthopaedic doctor as a defamation per quod, to recover for defamation, he would have to, for example, find a witness to testify about how his reputation or character was diminished in the community because of that publication / FaceBook post.
Case Law Explaining the Difference Between Defamation Per Se and Per Quod:
In South Carolina, the law regarding a defamation per se and presumed damages is stated as follows:
Under the common law, “[l]ibel is actionable per se if it involves written or printed words which tend to degrade a person, that is, to reduce his character or reputation in the estimation of his friends or acquaintances, or the public, or to disgrace him, or to render him odious, contemptible, or ridiculous. (Erickson v Jones Street from 2006 is reported here).
In contrast, South Carolina courts have described a defamation per quod as follows:
If the defamatory meaning is not clear unless the hearer knows the facts or circumstances not contained in the statement itself, then the statement is defamatory per quod. In cases involving defamation per quod, the plaintiff must introduce facts extrinsic to the statement itself in order to prove a defamatory meaning. (Parrish v Allison from 2007 is reported here).
Another way to describe it is like this, in a defamation per se, the plaintiff need only introduce the news article itself, in the defamation per quod, the plaintiff needs the witness / reader of the statement to explain why she knew the article was referring to that particular orthopaedic male doctor. This same witness could then testify that reading the statement damaged the character or reputation of the plaintiff male golfing orthopaedic doctor.
So What to Make of All this Latin Per Se / Per Quod Jargon?:
The role of the lawyer / advocate is to convince the jury and the court that the offending statement is defamation per se (if you represent the plaintiff), or defamation per quod (if you represent the defendant). If the defendant’s counsel fails to convince the jury that the statement is a defamation per quod, their next step is to attack the rebuttable presumption of damages, defend on grounds that the statement is truthful, or that an absolute or qualified privilege applies.
However, some of us must still ask, “why allow a plaintiff to recover without proof of actual damages?”
It is the embodiment of policy developed over years and years of refinement of the common law. The premise behind that policy is that “one’s reputation is invaluable.” It is also very likely a by-product of the U.S. Constitutional prohibition against a prior restraint of speech. Unlike folks in the United Kingdom who can get what this author considers to be somewhat ridiculous and impractical SuperInjunctions where the court order the press (yes, all of the press) not to report on certain private affairs (i.e., mostly soccer player’s illicit affairs), in the U.S., the constitutional right to free speech necessarily allows you to defame another person, but not without consequences!
The Right to Make the Statement, the Right to Bring the Lawsuit:
If you live in the U.S., you have a right to defame another person, however, the law provides that they can bring an action against you for the defamatory statements and recover. The victim of the defamatory statements does not have to wait around until their reputation is completely ruined, and their business lost, to bring an action. This is in part because, as a general rule, they cannot seek an injunction to stop you from saying or writing things about you, and also supported by the fact that a plaintiff cannot always know, and may never know, who shunned him or her because of what they heard or said from another source.
Defamation Per Se Damages:
The damages recoverable may vary from state to state, or at least the way in which they are described may vary. Some states use the three categories: (i) nominal damages: (ii) actual damages; and (iii) punitive damages. If you are defamed, depending on the character of the comments and the ill will or motivation attributed to the speaker or writer, you may be able to recover nominal damages and punitive damages without evidence of actual harm to your reputation.
In South Carolina, the defamation damages categories are often described by the following three categories: (i) general damages, (ii) special damages and (iii) punitive damages. These general damages in South Carolina represent the presumed category of damages described above and include such things as “injury to reputation, mental suffering, hurt feelings, and other similar types of injuries which are incapable of definite monetary valuation.” Special damages under South Carolina law include “tangible losses or injury to the plaintiff’s property, business, occupation or profession, which are capable of being assessed and which result from injury to the plaintiff’s reputation.” Punitive damages are also recoverable in South Carolina if the plaintiff can show by clear-and-convincing evidence that the nature of the statement is necessary to warn others from committing similar offenses in the future.
This brief review of some of the principles in play when there is concern that a statement may be damaging to someone’s reputation, and therefore be actionable, illustrate the complexities that can be involved in a defamation lawsuit. Also, the statute of limitations in defamation cases can be as short as two years, not three years as in most other claims.
If you are involved in a dispute regarding allegations of defamation, either as a potential plaintiff whose character or reputation has been damaged or as a defendant, you should seek counsel that is experienced in handling these types of cases in the state in which the action will be brought, understands these distinctions, why they exist, and how to use them in your case.