Defamation

Defamation 

If someone says something about us that is untrue or mean spirited, it will generally hurt our feelings.  What if someone says it at work?  A coworker or our boss?  What if I get fired because of what someone else said about me?  What if it is not true?  Can I sue them?   What are my damages?

Some clarifications.  Slander, Libel, and defamation are all related.  Libel and slander are types of defamation. Slander is spoken defamation. Libel is written defamation.  But what, exactly, is defamation.  

The legal meaning of defamation, the type you can sue on, is quite narrow.  It is so narrow in fact, that in most cases, what you think and feel is defamation is likely not defamation in the legal sense.  

Legal Definitions 

In order to sue for Defamation, the event must violate the written law, found in California Civil Code §§ 45 to 47.     California law defines Libel as: “false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” 

California law defines Slander as follows: “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:

1. Charges any person with crime, or with having been indicted, convicted, or punished for crime;

2. Imputes in him the present existence of an infectious, contagious, or loathsome disease;

3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits;

4. Imputes to him impotence or a want of chastity; or

5. Which, by natural consequence, causes actual damage.”

In order to win a defamation case you must prove the following: 

1. A person made a defamatory statement to at least one other person besides you: 

2. The statement was a false statement of fact (i.e., something that can be proved true or false), not opinion. Bad performance reviews are typically held to be statements of opinion, so if you get one, you won’t normally be able to sue for defamation. 

3. The person who heard the statement reasonably understood that statement referred to you; 

4. The hearer reasonably understood that the statement meant something defamatory; 

5. The person who made the statement failed to use reasonable care to determine whether the statement was true or not before making it. 

Examples

A common complaint I receive is that a supervisor or manager put things in a performance review that are false or misleading.  Sometimes the review states that if the employee does not change their performance he/she risks getting fired.  Most times in California, things that go into a performance review are considered opinions only, meaning that they cannot be proven true or false.  Statements that are opinion only cannot be defamation.  Furthermore, usually performance reviews are not "published" to other people they are kept between the manager and the employee.  On the other hand if a manager says something that is not true, even in a performance review, that tends to directly injure the employee in his profession trade or business, and the manager says it to other people, it may be defamation.   

Another common situation involves job reference checks.  If you are looking for a job and a former employer says something to a prospective employer that is not true and hurts your chance to get the new job, you may have an action for damages against your old employer.  If this has happened to you, please call Gienapp Law, APC at (619) 234-3054 to discuss your options.  

If any person makes false statement about your professional reputation or competence, that people hear and believe are true, that speaker may be liable to you for defamation.  If a co-worker makes such a statement, you are usually limited to a lawsuit against your co-worker.  However if a supervisor or manager makes such a statement, you may be able to sue not only the person who made the statement, but your employer too.  

There are many legal pitfalls in the law of defamation.  If you believe you have a claim, it is important to not wait.  Claims of defamation must be brought within one year, and in some cases must be presented within six months.  If you believe someone has made a defamatory statement against you, please call Gienapp Law, APC at (619) 234-3054 to discuss.