Damages are an element to proving almost any civil claim, but is an essential element to all defamation and privacy claims. For those who have experienced online defamation and online harassment, it may seem obvious that you have sustained damage, but proving those damages in court is not as easy as it would seem. Whether you’re proving damage to your reputation, financial damages, or emotional distress, there are certain steps that you should be aware of before moving forward with litigation over false and defamatory statements.
This article from Buckingham highlights the different ways a Plaintiff can demonstrate damages for defamation.
Understanding the Basics of Defamation
In order to prove a defamation case, a plaintiff must show that there has been a false statement, about the plaintiff, that has been published and seen by members of the public, and which has caused the Plaintiff damage. While the elements of defamation may vary some from state to state, the general principle remains that there needs to be some proof of damages resulting from the defamatory statement. But how are these damages defined and how does one prove damage to reputation?
These are questions that are frequently evaluated and reassessed in the courts and can frustrate even seemingly open and shut defamation cases.
Types of Damages in Defamation Cases
- Monetary (or Special) Damages
The first type of damages to discuss are monetary, or economic, damages. This type of damages are viewed as quantifiable economic losses that are caused by the false and defamatory statements. These types of damages, also referred to as special damages, can be a decline in revenue, a decrease in customers, lost job or contract, or potentially costs incurred in mitigating the effects of the defamatory statements, such as reputation management or increased marketing campaigns.
While it may be easy to point to certain decreases in revenue or lost contracts, you still need to show that these were caused by the statements. This is usually best done through the use of an expert witness, such as a forensic accountant. This can also be done through providing records, including profit and loss statements, tax returns, and other financial statements that can demonstrate a calculable loss.
- Reputational Damages
The second type of damages, and the one most commonly attributed to defamation cases, are reputation damages. Reputational damages are very nuanced, and can both be difficult to prove or presumed depending on the severity of the statement.
In certain cases, the false statements can be considered defamatory per se, and these reputational damages are presumed to have occurred. Generally, in order for a statement to be defamatory per se, the statement must accuse a person of 1) committing a crime of moral turpitude; 2) spreading an infectious disease; or 3) conduct which is particularly damaging in a person’s trade or profession. If the statements fall under defamation per se, there is no need to prove any monetary or special damages. In certain states, punitive damages can be awarded for statements which are considered defamation per se as well.
If a statement is not defamatory per se, it is still possible to prove reputational harm, especially online. In cases involving online defamation you can demonstrate damages to your reputation through a decrease in your rating on review sites, comments from users to your statements, increased popularity or traffic to the posts containing the false statements, or even an decrease in engagement with your online content. Reputational damages can be difficult to prove and it is important to consult with a defamation attorney to determine the best way to demonstrate this form of damages in court.
- Emotional Distress
The final form of damages you can demonstrate in a defamation or online harassment claim are damages for emotional distress. These types of damages can be even more difficult to prove than reputational damages, and, in most instances, are best done through expert testimony. However, expert testimony, in most jurisdictions, is not required.
As anyone who has ever experienced online defamation or internet harassment knows, the emotional distress caused by these actions can be immense. Emotional distress can take many forms, but in most jurisdictions, the emotional damage and distress must be severe and have a significant impact on a person’s daily life. These types of damages can include depression, anxiety, difficulty sleeping, extreme irritability, and suicidal or harmful thoughts. Proving these types of damages flowed from the defamatory statements or harassing conduct can be difficult however.
If the situation has caused you to seek treatment for your distress, those records and testimony can be used to further prove the extent and the cause of your damages. In addition, testimony from your loved ones which demonstrates the emotional toll that the false and harassing actions have had on you can prove to be powerful evidence for a jury. The most effective way to prove damages for emotional distress is through the use of expert witnesses, who can evaluate your medical records, testimony, and other evidence to determine the cause of this emotional distress.
While these damages do not usually qualify as special damages, they can be powerful forms of damage and testimony for the jury to hear and consider.
How to Prove Damages
- Gather Your Evidence
It is vital to collect as much evidence as you can to prove your damages resulting from defamation or online harassment. This includes screenshotting all defamatory comments or posts, preserving comments or reactions to those statements or posts, collecting and maintaining all medical records relating to any emotional distress that you have endured. Having this evidence ready will allow you to move forward with your case in the most efficient way possible.
- Gather Witnesses
Whether it is through your family members, friends, or colleagues, having witnesses testify as to the damages you sustained is very important for proving damages in your case. First hand testimony from witnesses is powerful in a trial and can demonstrate to the jury the full extent of the damages that you have incurred.
- Consult with Experts
Experts can be used to prove damages in many ways. Whether you are using an accountant to prove financial loss or a doctor to prove emotional distress, experts not only are able to testify about the amount of damages you have sustained, but also can help attorneys prove that the damages were caused by the false statements or harassment. This can be a crucial step, especially when dealing with defamation that is not considered ‘per se.’ Your attorney can help guide you through this process.
While defamation and privacy claims have many elements, the element of damages can often be the trickiest. If you feel that you’ve been defamed or had your privacy violated, it’s important to maintain document your damages fully to best present your case.
