Libel and slander—collectively called defamation—are unique legal claims. Defamation allows a plaintiff—be it an individual, business, or other organization—to recover money from a defendant who has spoken or written false things about them. In short, defamation is a claim for lying.
It is also fraught with various legal hurdles. A potential plaintiff cannot win for just any false statement about them; a plaintiff must prove the appropriate mental state of the defendant and prove that the statement has defamatory “sting.” This “sting” means the false statement lowered the plaintiff’s reputation “in the estimation of community” or otherwise deterred others “from associating or dealing” with the plaintiff. See Schaecher v. Bouffault, 290 Va. 83, 91–92 (2015).
And, what can be most challenging for a defamation plaintiff or advantageous for a defendant, is proving harm. Even if a statement satisfies the requirements above, a plaintiff must then prove that the statement has caused reputational harm. A plaintiff must demonstrate that someone’s false statements have tangibly affected his or her social, personal, or professional life, which can be difficult to monetize.
Defamation per se is a special flavor of defamation that alters how a court or jury evaluates harm, as it applies to particular statements accusing a plaintiff of either:
- committing a crime of moral turpitude,
- being unfit for his or her job,
- having a contagious disease, or
- being unfit in his or her profession or trade.
See Tronfeld v. Nationwide Mut. Ins. Co., 272 Va. 709, 713 (2006).
Many plaintiffs mistake defamation per se as some sort of categorical or automatic defamation—meaning, if someone merely makes one of these four statements, the plaintiff wins. This is not the case.
Instead, defamation per se means “juries are entitled to presume and award compensatory damages even if the plaintiff cannot prove actual injury.” Gov’t Micro Res., Inc. v. Jackson, 271 Va. 29, 49 (2006). In other words, a plaintiff does not have to prove financial loss because of the statement. If the statement is defamatory, the jury will be told by the judge to put a dollar figure on the case.
Defamation per se can significantly change the value of a libel or slander claim. If a defendant has made a false statement with the right mental state, then that defendant is facing the prospect of a jury awarding at least some degree of money against them.
In sum, don’t mistake defamation per se as an automatic liability “win” for a plaintiff. At the same time, don’t underestimate the additional risk defamation per se poses to a potential jury award.
