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What Is Defamation Per Se?

The tort of defamation refers to a false statement, either spoken ("slander") or written ("libel") that injures someone's reputation. However, some types of false statements are considered so damaging that they are deemed defamatory on their face ("defamation per se"). This is in contrast to "defamation per quod" where the false statement is not inherently defamatory and has to be evaluated in the context of additional facts. Generally, for defamation per se, the statements are presumed harmful whereas for defamation per quod the damage must be proven.

Although most states recognize the distinction between these two types of defamation, some do not. Be sure to check the applicable law in your specific jurisdiction before moving forward with your case.

Categories of Untrue Statements

Traditionally, there have been four general categories of untrue statements presumed to be harmful to one's reputation and therefore defamatory per se. Typically, if the statements do not fall into one of these categories the plaintiff is required to prove his damages. If it does fall into one of these categories, damages are usually presumed. The four general categories are:

  • Indications that a person was involved in criminal activity
  • Indications that a person had a "loathsome," contagious or infectious disease
  • Indications that a person was unchaste or engaged in sexual misconduct
  • Indications that a person was involved in behavior incompatible with the proper conduct of his business, trade or profession

For example, in an Alaska case a woman accused a man of assault, battery, and false imprisonment, and he brought a claim against her for defamation. The court explained that because the statements were slander per se (since they imputed a serious crime), the man was not required to prove the damage to his reputation and emotional distress. As a result, his award was affirmed.

In a Texas case, one doctor sued another for a letter he circulated that stated that the doctor had a reputation for being untruthful. The court determined that this was not defamation per se since it didn't injure the doctor in his profession, and that, accordingly, the doctor had to prove that he had suffered mental anguish and loss of reputation.

Although most states more or less adhere to these four categories, the precise definition of what constitutes defamation per se and the rules surrounding it vary from state to state, so it's important to check the law in your jurisdiction.

Damages

Depending on the circumstances of the case, the following damages may be awarded in defamation per se actions:

  • General damages: The compensation for the past and future harm sustained to reputation in the community as well as mental or emotional anguish and personal humiliation.
  • Special damages: The compensation for specific economic loss caused by the defamation. This can include things like loss of profits and loss of a job.
  • Nominal damages: A nominal sum that can be awarded when defamation per se has occurred but no serious harm to reputation was done.
  • Punitive or exemplary damages: Additional sums meant to punish or set an example when the defendant's actions were willful or malicious.

Truth Is an Absolute Defense

It should be noted that truth is an absolute defense to defamation per se. This means that even if the statement would be considered defamatory per se if false, if the defendant establishes that it's in fact true, an action for defamation per se cannot survive.

Get Legal Professional Help with Your Defamation Per Se Claim

There's a lot to be said about the value of one's reputation. If someone has uttered a particularly damaging false statement about you it could destroy your career, end your marriage, and do other serious harm. An attorney will be able to help you understand your rights and decide whether it makes sense to file a defamation per se claim in order to reclaim your reputation. Check FindLaw's directory of defamation attorneys to find one near you.

 

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