In a world where information travels at the speed of a click, protecting your reputation is more important than ever. When false and defamatory content is published online, it can rapidly spread to thousands of people in a matter of minutes and have a devastating impact on your reputation. Accordingly, taking action to handle the matter quickly and effectively is crucial..
There are many ways to address internet defamation that do not involve filing a lawsuit. However, sometimes litigation is the best – or only – way for a victim to obtain relief and mitigate the harm suffered as the result of false and defamatory statements published online.
Statistics suggest that victims of defamation are now more likely to file lawsuits than in years past. While these statistics can be difficult to track, it is significant that the number of defamation claims in 2019 was the highest in the previous decade. If we compare 2019 to previous years, there is a 22% increase in issued defamation claims compared to 2018.
While defamation litigation may be increasingly common, the process of filing and pursuing a lawsuit can be extremely daunting. However, with the assistance of a trusted attorney and an understanding of the process itself, victims of defamation can enter into litigation with more confidence and realistic expectations.
In this blog article, Buckingham addresses the initial stage of defamation litigation: preparing to file a lawsuit.
Understanding Defamation
Before you file a lawsuit to address false and defamatory statements, it is important to understand the elements of each of your claims, as well as the potential defenses to those claims and other practical considerations related to engaging in litigation.
In general, to prove a claim for defamation, a Plaintiff must show that there were false statements made about them by the Defendant, the statements were demonstrably false, and the statements caused damage to the Plaintiff. Through understanding the elements of defamation, you will have a better understanding of what facts need to be included in your complaint and what you will ultimately need to prove at trial to win your case.
The elements of defamation are just one of the first things to know when exploring whether you have a viable claim for online defamation. Other considerations include the potential defenses, such as the statute of limitations or statutory privileges, or; the degree of fault that you will need to show in order to prevail (e.g., negligence vs. actual malice). Before investing the time and money to file a defamation lawsuit, it is important to determine whether it can be easily defeated through a defense. While you can and should secure an attorney to conduct an appropriate legal analysis of your potential claims, as discussed further below, it can be helpful to have a general understanding of some of these concepts yourself.
You should also be aware of some practical considerations regarding litigation for false and damaging statements, such as what relief can be awarded by a court, the likelihood of recovering damages, and even the possibility that litigation could bring more attention to the harmful allegations.
If you believe that you have a claim for defamation and are ready to begin the process of pursuing a lawsuit to address the harm you have suffered, take the time to review the following steps, which will give you an understanding of the process that will occur before you ever step foot into court.
Steps to Filing a Defamation Lawsuit
After you have decided that you want to pursue a claim for defamation, what are the next steps to filing a lawsuit over the false and defamatory statements? While the process can vary greatly from state to state, the below steps provide a general overview for how to approach filing a lawsuit for defamation.
- Consult with an Attorney
Defamation claims are incredibly complex and there are numerous considerations that need to go into every step of pursuing your claim. It is generally not a good idea to pursue these claims pro se – i.e., without attorney representation. However, even if you intend to proceed on your own, it is important to at least consult with a defamation attorney prior to pursuing your claim. An attorney with experience handling defamation claims can provide the strengths and weaknesses of your claim and assist you in preparing the case appropriately.
- Demand Letter
Prior to filing your lawsuit, it can be advantageous to attempt to reach out to your defendant to demand that the content be removed. In certain jurisdictions, this is a requirement to preserve certain damages for your lawsuit. Even in jurisdictions that don’t require it, an appropriately drafted demand letter can sometimes lead to a productive dialogue with the Defendant and a quicker, less expensive, resolution. Further, demonstrating to the Court that you attempted to resolve this matter with the defendant can be a valuable detail in your Complaint should the matter not be able to be resolved.
However, victims of online defamation also need to be aware of the possibility that a demand letter – detailing the false and harmful statements – may be published by the defendant online. If the letter is not prepared in a thoughtful way that contemplates this possibility, the publication of the letter can cause the victim further reputational damage. Conversely a well-crafted demand letter can have the inverse effect and actually help rebut some of the defendant’s false claims before ever entering court.
- Request Removal
In addition to submitting a demand letter to your Defendant, it is also worth trying to request removal of defamatory content from platforms where it is published. Platforms like Twitter, Facebook, and Instagram all have portals through which you can report content that might violate the terms of service for those platforms.
While these platforms are protected from liability for content posted by its users through Section 230 of the Communications Decency Act, some platforms will take a proactive approach towards removing offensive, harassing, or defamatory content, and using their reporting options is another way to more efficiently address these issues.
While this step can be taken at any point in the process – including well before you consult with an attorney – it should also remain a consideration throughout the pre-litigation and litigation process. Occasionally, platforms will initially ignore or refuse to remove content upon a first request, but they may adjust their position with time. Even if you’re intent on moving forward with litigation if the harmful content is removed, it is to your benefit to have the content removed as quickly as possible to mitigate the reputational damage.
- Determine When and Where to File Your Case
If it appears that you will need to move forward with initiating legal action, one of the first matters to decide is where to file, as jurisdictional statutes and case law can have a major impact on how your case moves forward. Picking the right court for your case is critical in any lawsuit, but it is even more important in defamation cases, as many states have their own unique interpretations of defamation and privacy laws, rules for damages, and even steps a plaintiff must take before filing a lawsuit for defamation.
Where you file your lawsuit is incredibly important because it can dictate when you need to file your lawsuit, as well. The deadline, or statute of limitations, for filing defamation lawsuits varies from state to state. Each state does, however, have a deadline that you must file your lawsuit or you will be barred from pursuing your action. In general, the statute of limitations is between 1 to 3 years.
Further, if you file your case in the wrong jurisdiction, this can result in expensive and time consuming motion practice and, possibly, the dismissal of your action. While typically such dismissals will be “without prejudice” – meaning that the case can be refiled in the appropriate jurisdiction of court – this is not always the case. Moreover, you will experience a significant delay and have expended unnecessary funds in an already costly process.
It is important to take the time to perform an appropriate analysis of jurisdiction and venue based upon the specific facts of your case, and once you know where you are going to file your defamation lawsuit, you can move forward with the other specific jurisdictional requirements for your case.
- Prepare Your Complaint
If a removal report or demand letter hasn’t resolved your matter and you’ve decided where to file your case, the next step in the process is to prepare your complaint for defamation.
It is important to note that while your primary claim might be for defamation, there are usually a myriad of other causes of action that you can pursue against your defendant. These claims may include intentional infliction of emotional distress, invasion of privacy, interference with business, or even breach of contract depending on your relationship with the Defendant. Additionally, sometimes there are state-specific statutory claims that can be pled in a case involving online harassment or privacy invasions. This is another reason it is important to pick the right jurisdiction and law that applies to your case to ensure you are not leaving out any possible viable claims that fit the facts and circumstances of your case.
When setting forth your defamation claim, specifically, it is crucial the Complaint properly identifies the false and defamatory statements in detail. Typically, the best practice is to fully quote the false and defamatory statement in your complaint and/or attach a copy of the defamatory statement, such as a copy of a defamatory Google review or social media posting. By setting forth, verbatim, the specific defamatory language used, there will be no question about what is contained in the statement
Another important component of pleading a defamation claim – or similar false light invasion of privacy claim – is a description of (1) why the statements at issue are false and (2) why and how they have caused you damage. This may seem obvious, but sometimes it is not clear why the statements are false, or why the falsity of those statements is damaging. Context is incredibly important in defamation cases, and providing a full breakdown of the context surrounding the false statements will help you prove your case and be successful in Court.
Finally, it is important to fully outline the damage that you have sustained as a result of the false statements. Regardless of your jurisdiction, damages are an essential element of your defamation claim, and providing detail in your complaint about the damage that has been caused will give you the best chance of success in pursuing your cause of action. These damages include monetary damages (or economic damages) as well as emotional distress or other physical manifestations that the false statements have had on you.
These are just some of the important considerations to keep in mind when preparing a complaint for claims arising from false and defamatory statements. You will also need to ensure that all other components of a well-pled complaint for your relevant jurisdiction and court have been satisfied – a matter that should be handled by your attorney.
Once the complaint is in final form, it will be filed with the relevant court and served on the defendant. Once service is accomplished, the case will have officially commenced and you will be one step closer to vindicating your rights.
The foregoing discussion only sets forth the first steps in the long journey of defamation litigation. However, these initial steps are crucial to ensuring that you’ve explored all options for resolving your matter quickly and expediently and, further, that once you decide to file the case, the process goes as smoothly as possible.
Complaints should be prepared carefully and thoughtfully with an eye on the ultimate goal: proving your case at trial. A well-drafted complaint will provide your case with a solid foundation and set the tone of your case moving forward. Providing the necessary details of your efforts to resolve the matter, identifying the false statements, identifying why they are false, and showing the damages you have sustained as a result of the false statements will not only provide the Court, and potentially a jury, the full context of what happened, but it will also fully demonstrate that you are able to defeat any early challenges to your case.
Once you have filed your fully prepared complaint, you can move forward with discovery and be on your way to successfully prove your case.
