Defamation in the Workplace

The Basics of Defamation:

Defamation means injuring someone’s reputation through a statement, either written or verbal. A defamatory written statement is commonly referred to as libel meanwhile, a defamatory verbal statement is referred to as slander. Regardless of whether it is libel or slander, the defamatory statement must be one which harms the person’s reputation, exposes them to ridicule, causes others to lose goodwill or confidence in the individual, and tends to injure the individual in their business or employment.

Also, a reasonable person standard is used when finding whether the statement was defamatory. The common and ordinary meaning of the words in the statement are taken into consideration. So, a reasonable person must find the statement to be defamatory.

Proving Defamation:

If you feel that an employer, a co-worker, or other person in your “employment universe” has made defamatory statements about you, there are 5 things you must show:

• False statement
• Concerning you
• Communicated to a third party
• Statement was made with negligence in failing to determine the statement’s falsity and
• Damages were suffered by you.

But, there is more to this than meets the eye.

For example, the first one on the checklist must be proven false. This does not mean that the whole statement needs to be false in every detail. Instead, the statement must be found substantially false where the statement has a defamatory “gist” or “sting.”

Next, the defamatory statement must show that it was about the Claimant. Using the reasonableness standard once more, a reasonable person hearing the statement must reasonably understand the statement to refer to one particular person .

Third, the victim needs to show that the defamatory statement was communicated to a third party. At least one person needs to receive communication, whether it be verbal or written.

Then, there must be a showing that the offender negligently failed to determine the falsity of the statement before making it. This can be established by showing that the defamer did not take reasonable care when communicating the statement. For example, the defamer did not look into the trustworthiness of their sources, attempt to verify the statement, etc.

The last requirement is a showing that the claimant suffered harm because of the defamatory statement. Examples of harm to the plaintiff’s reputation are losing their job or a promotion, or being shunned by co-workers, because of false statements regarding their experience.

If the victim successfully proves the required elements of defamation, monetary and punitive (penalizing) damages may be recovered. A defamation claim must be filed one year from the date of the statement’s communication.

Defamation of a Public Figure:

If you are a public figure, then the fourth requirement will not apply for you. Instead of a negligence standard, you will have to satisfy an actual malice standard. This means that the defamer made the statement with knowledge that the statement was false or with reckless disregard of the statement’s truth or falsity.

In finding whether you are a public or private figure, the identifying factor is whether you have a role in the affairs of society and are in the public spotlight. Examples of public figures include public officials, celebrities, etc. There are also two types of public figures, all-purpose and limited- purpose. All-purpose public figures achieve notoriety and fame in all contexts. For instance, all-purpose public figures are those who have become household names. Meanwhile, a limited-purpose public figure achieves fame in only certain areas and fields. This results in the actual malice standard only applying to the area that makes the individual a public figure.

Defenses to Defamation:

One of the defenses to a defamation claim is substantial truth. The substantial truth rule allows minor factual inaccuracies in a statement. Yet, the factual inaccuracies cannot materially alter the statement’s substance. A defamer can then claim that the communicated statement was substantially true.

Another defense is the opinion and fair comment privilege allows a person to safely state their pure opinion or comments, as long as there are no false underlying facts. If this privilege is claimed in a lawsuit, a court will look at a “totality of circumstances.” Those include whether the statement is verifiable, the statement’s full context, the social conventions surrounding the statement’s publication and common usage of the language used in the statement.

If you fear that there has been defamatory statements made against you by someone in your workplace, do not hesitate to reach out to the Kates Nussman Ellis Farhi & Earle, LLP team.

Viviana Torres is a rising third-year law student at Seton Hall University School of Law, where she works as an interpreter for the Center for Social Justice. Viviana is also treasurer of LALSA at Seton Hall Law.