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When Free Speech Gets Costly: A Look at Defamation Law

It seems everywhere we go today somebody is accusing somebody else of wrongdoing. The facts may sound familiar: a newspaper article blasts a local state senator; a resident takes the stand at local government hearing and accuses a zoning board member of misconduct; a church employee is publically accused by the board of directors of embezzling parish funds; a land developer is criticized by local residents for actions he took in the course of developing the property. The legal question is whether any of these scenarios give rise to a claim for defamation.
What amounts to a cause of action for defamation?
Blacks’ Law Dictionary defines defamation as an “intentional, unprivileged, false communication, either published or publically spoken, that injures another’s reputation or good name.”  Yet, defamation is more than it may seem as it includes the common law torts of libel and slander – libel being written defamation and slander being spoken or oral defamation. When discussing defamation in general terms, it is commonly described as a knowingly untrue statement tending to “to diminish the esteem, respect, goodwill or confidence in which [the defamed person] is held, or to excite adverse, derogatory, or unpleasant feelings or opinions against him.”
To establish a case for defamation, the defamed person must demonstrate that: (1) the accused party published a defamatory statement; (2) the defamatory statement identified the defamed person to a third person; (3) the defamatory statement was published to a third person; and (4) the defamed person’s reputation suffered injury as a result of the statement.   The term ‘publication’ generally refers to the communication of words to a third person.   In short, the statement or writing must have come to the attention of someone other than the defamed person, and in a way that identified and injured his or her reputation.
The analysis does not end there. A fundamental point to bear in mind is that in order for a defamation claim to be actionable, the statement must be false.  Under common law, truth is an affirmative defense to defamation. Further, the statement must be one of fact and not opinion. In other words, it must express an objective fact because the law will not punish an individual for merely expressing an opinion. Generally, a factual statement concerns a past or present event or state of affairs about which others may have knowledge. In the defamation arena, factual statements typically relate to the conduct or character of another individual.  In contrast, an opinion is commentary about another person's personal conduct, qualifications or character that has some basis in fact.
What are the damages to be expected from a defamation lawsuit?
The law distinguishes between general and special damages in defamation actions. In an action for defamation per se, the law presumes that an injury to the defamed person’s reputation has occurred. To fall within a category of defamation per se, the defamatory statement must accuse the defamed person of a crime involving moral depravity or of committing a crime punishable by imprisonment. Therefore, he or she is not required to specifically describe the injury in the pleadings or prove it at trial.  In those situations, the individual is entitled to recover, as general damages, for the injury to his or her reputation and for the humiliation and mental suffering caused by the defamation.  
To recover special damages, however, the defamed person is required to prove that economic loss was suffered that was directly caused by the defamatory statements. In fact, State law holds that in actions for libel, a defamed person may be limited to special damages absent proof of malice in fact or that a request for a retraction of the statement was denied.
The proof required for satisfying the malice in fact requirement varies depending on the status of the defamed person.  If the defamed person is a public figure, malice in fact must be proven. The law defines malice in fact as “the publication of a false statement with knowledge of its falsity or reckless disregard for its truth, and malice in fact as the publication of a false statement with bad faith or improper motive.” Private individuals, on the other hand, need only prove negligence in the failure to investigate the facts properly prior to publication.
Effect of Retraction
Under Connecticut law, a defamed person is required to show that a demand for retraction was made and the request was refused in order to receive special damages.  Local statutes are not clear, however, in describing what happens when the individual who made the statement actually retracts it. Other jurisdictions have more specific statutes stating that the publication of a retraction eliminates liability for specified types of damages. In Connecticut, recovery may also be statutorily limited to special damages in the absence of a demand for a retraction or correction and the publication of such retraction or correction. Section 52-237 of the Connecticut General Statutes limits recovery to special damages unless a retraction is demanded and refused, but it fails to indicate whether any remedy is available when the statement is actually retracted.
Ordinarily, retraction is not a defense to an action for defamation, and it cannot be asserted as grounds for dismissal. In short, the retraction will not invalidate a cause of action, but it may reduce the amount of damages. Here, the status of the defamed person is also relevant. If the defamed person is a public figure, the retraction might limit him or her to special damages. In a Connecticut defamation lawsuit, a public figure sued a newspaper for articles written about him, and the newspaper printed a retraction. The court held that “the fact that the newspaper retracted the statement is indicative of its concern for relaying accurate and truthful information. As such, we cannot say that the record demonstrates by clear and convincing evidence that the defendants acted with actual malice in publishing [the] story.”   Without proof of malice, only general damages are awarded. However, the lesser standard required of a private individual seeking damages for defamation may provide an opportunity to avoid such a limitation on damages.
Variations on the theme
Application of defamation principles extends beyond statements made against individuals. Causes of action are recognized for defamation affecting business and title to property.  For example, false communications which damage or tend to damage the reputation as to quality of goods or services are often described as disparagement, product disparagement, trade libel, or slander of goods. False communications which implicate the defamed party's title to goods or to real property are usually described as “slander of title.” Interestingly, in the law of defamation, slander indicates oral communications and libel written communication but the phrases trade libel, slander of goods, and slander of title are used without regard to the manner of publication.
Trade libel is defamation or disparagement of a business' goods and services. Where a statement impugns the basic integrity or creditworthiness of a business, an action for defamation exists and the court will presume injury has occurred. Trade defamation is the knowing publication of false information that is both disparaging to the defamed business and calculated to prevent or interfere with relationships between the defamed business and others to its detriment.  In order to sustain an action for commercial disparagement, a defamed business owner must paint a picture which could subject it to liability for commercial disparagement.
Slander of title occurs when the defamed party’s claim of title to land or other property is disparaged by a letter, caveat, mortgage, lien or some other writing.  A cause of action for slander of title consists of any false communication that results in harm to interests of another having pecuniary value.  “In other words, slander of title is a falsehood published to third parties that is not withdrawn after a demand by the titleholder, which impugns the basic integrity or creditworthiness of an individual or a business. . . .”  For example, a party can bring a claim for slander of title when there is an unauthorized recording of a mortgage that is not removed from the land records upon demand.
Defamation can take many forms. Individuals are encouraged to protect themselves against a defamation claim by using caution in their communications.  In particular, statements can be tempered by using words like alleged, possibly or probably. If after consideration of the defamation principals described above you believe you are a victim of defamation, seek the advice of counsel.