“I’ve Been Slandered, And I’m Going To Sue.”

Back Stabbers ~ The O'Jays. Click To Play & Feel Young(er)

“I was fired because of what was said.  It was slander, defamation, and libel.  I’m not going to sign this severance agreement, and I’m going to sue because it’s just not true.”  Um, OK, but let’s just talk this through Don.  With the increase in sites like reputation.com job security concerns, and hungry attorneys we’ve seen an increase in recently severed employees jumping on the “I’m going take them for everything they’ve got” bandwagon.  I increasingly need to explain to candidates what defamation is, is not, and what they’re up against.

What are the differences between slander, defamation, and libel?

  • Defamation is when one issues a false statement about another causing harm. “Harm” can be in the form of financial distress, reputational damage or anything else that can be quantified.
  • Slander involves making a defamatory statement against a person that wasn’t written down but through witnesses can be proven. Slander normally is in the form of verbal representation.
  • Libel involves making defamatory statements in a written form that is available to the public.  Newspaper reports, magazine articles, blogs, emails, etc.

With any of these there must be some elements present for a case to be considered. Some elements include:

  • A statement against another that is false and defamatory.
  • Present and accountable damage to the plaintiff.
  • Public defamation or libel must at least amount to negligence.
  • Unprivileged publication of a statement to a third-party.

Damages or…. Not so much.

Typically, damages are in the form of lost reputation but the trick to getting it even considered is to establish that high enough levels of mental anguish occurred requiring compensation. Most state jurisdictions also allow for “per se” defamation where actual damages do not need to be proven; rather the presumed damages are enough to establish a case. These are most common when a professional standing and character is defamed, but this is still very difficult to quantify.

There are also a number of defenses to defamation making these lawsuits notoriously difficult to win.

  • The First Amendment of the US Constitution:  The whole free speech thing is often problematic in establishing defamation and is the primary first line of defense.
  • Truth:  The fact that the statement is true is an absolute and perhaps obvious defense to defamation. If, after either printing or saying something about someone, you can prove that what has been said is truthful there will be no liability for defamation.  So if it is proven to be true that Don was disciplined for being a compulsive liar, being rude and disingenuous to customers, etc., then there is no defamation.
  • Opinion:  If a defendant can prove that what they were saying was merely opinion, this may be a valid defense to an allegation of libel or slander. The difference is best defined as whether or not the statement was given to be ‘fact’ or merely an individual’s viewpoint. It also depends on the perception of the people who hear or read the statements: if the person making the statement is likely to be in a position to ‘know’ whether the statement is actually true or not, it is more likely that the statement will be perceived as fact.  “So, from my viewpoint, and I really have no way of knowing this, Don is a compulsive gambler, womanizer, and may have some organic issues that don’t allow for all the neurons to be firing perhaps causing him to be a compulsive liar.” probably does not arise to defamation, slander, or libel.
  • Fair Comment:  This is a defense that is available to people who have expressed an opinion in relation to a matter of public interest. For example, if the national media has accused a high-profile celebrity of having an extra-marital affair it will not be defamatory to say that you think that it is true.  “I could care less if Don was fired, had affairs, was arrested, excommunicated from his family, church or anything else…No one should care.  It’s not news, or is it?”
  • Privilege:  Anything said in court, by lawyers, judges or witnesses, and legislators in the course of duty – no matter how shockingly untrue or offensive – is bound by ‘privilege’ and is not by its nature capable of being defamatory.  However, if those things were repeated out of court, and were not true it may be another matter. Comments such as “Don stole, cheated, lied, perjured, and he was abandoned by all that knew him…” would probably leave me on thin ice, particularly if they were written.
  • Dissemination:  Sometimes, information can be transmitted innocently and without the defendant’s knowledge. It is a defense to defamation if the person who passed on the statement was oblivious to its contents. “I didn’t know that the attachments included the information about the three local employers who had previously fired Don.”

However, it is not always advisable to commence an action for defamation. Although a defamatory statement causes anger and hurt, there are a number of other issues that must also be considered. Firstly, damages awarded in successful lawsuits are often fairly modest and attorneys may be unlikely to accept cases on a contingency fee basis for this reason. Secondly, high-profile lawsuits mean that the defamatory statement will be repeated on numerous occasions and may be subject to further publicity as a result of any media coverage, which has the effect of making the injurious statement better known than it was to begin with. Thirdly if the plaintiff then loses the defamation case, for whatever reason, this can reinforce the perception that the statement was the ‘truth’ – when the lawsuit may simply have failed due to a technicality or because of an inherent weakness in the case. Put simply, a plaintiff could end up poorer, and with a more damaged reputation, than if he or she had not sued at all.

For the most part, it’s best to just move on.  The reward invariably is just not worth the investment.  You won’t interview well, find peace, or be a better employee or person for it.  I have personally seen individuals that have been slandered rapidly move past the individual who slandered them on the career ladder within the same industry at a different firm.  By the same token, if the person who was guilty of the defamation, slander, and libel had focused on productive measures rather than casting unflattering comments, he or she probably would have moved up as well.


Posted on September 2, 2011, in Employee Engagement, HR Management & Leadership., Talent Management and tagged , , , , , , , , , , , . Bookmark the permalink. Leave a comment.

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