What Is Defamation Per Se?
An integral component of any defamation claim – whether slander or libel – is pleading and proving that the false and defamatory statement has caused harm. The plaintiff’s burden of establishing the existence of damage or harm depends upon the nature of the false statement and, specifically, whether the statements will be considered “defamation per se” or “defamation per quod.”
In this article, the defamation team at Buckingham provides a general overview of the doctrine of defamation per se, distinguishes per se defamation from defamation per quod, and explains how the differences between these two forms of defamation can impact a litigant’s claim when filing a lawsuit.
Understanding Defamation Per Se
Before defining “defamation per se” it is important to understand the elements of a defamation claim.
To establish a claim for defamation, a plaintiff must generally plead and prove the following elements:
- A false statement of fact
- About the plaintiff
- Published – without privilege – to a third party
- With fault or, in the case of a private plaintiff, with, at minimum, negligence
- The false statement has caused harm
As noted, the element of harm or damage is a critical component of any defamation claim. Being the subject of a false statement may very well be frustrating, unpleasant, or embarrassing. However, unless you can establish the false statement resulted in legally cognizable harm, you will not be able to pursue a claim for defamation.
The means by which a defamation plaintiff can prove harm is where the concepts of “defamation per se” and “defamation per quod” come into play. When a statement is considered defamatory “per se” there is a legal presumption that the false statement caused harm to the reputation of the plaintiff and, thus, the plaintiff will not need to prove “actual damages” to prevail. A plaintiff will be able to satisfy the fifth element of a defamation claim with no more than the statement itself. This legal presumption of harm relieves a defamation plaintiff of a significant burden – proving that one or more persons who read or heard the false statement believed it to be true and that, as a result of the same, the plaintiff’s reputation was damaged.
So what makes a statement worthy of the “per se” designation? While, ultimately, what is considered “defamation per se” will depend upon how that term is defined by the specific jurisdiction in which the case is filed, there are several categories of statements that are recognized in many jurisdictions as inherently harmful and, thus, defamatory per se:
- Statements that someone is guilty of a serious crime
- Statements that someone was “unchaste” or engaged in sexual misconduct
- Statements that someone has a “loathsome” or contagious disease
- Statements that someone engaged in behavior that was incompatible with the proper conduct of his business, trade, or profession
These categories of statements are so commonly recognized as constitutional defamation per se because they are obviously harmful to the subject’s reputation without the need for further explanation or additional facts. With this premise in mind, a number of jurisdictions, like Ohio, do not limit “defamation per se” to a specific list of categories, but, rather, through a broader definitional concept. Thus, for example, in Ohio, any false statement will be considered defamatory per se if it naturally exposes the subject of the statement to hatred, ridicule, contempt or disgrace.
Conversely, some jurisdictions define “defamation per se” even more narrowly than the four categories set forth above. In Michigan, for example, the only two specifically recognized categories of statements that are defamatory per se are statements that impute a criminal offense or “lack of chastity.” This limited definition is particularly important for businesses pursuing a defamation claim in Michigan. While businesses, like an individual plaintiff, can generally avail themselves of the “defamation per se” doctrine, in Michigan – which does not recognize false statements “concerning conduct incompatible with proper conduct of business, trade or profession” as defamation per se – it will be nearly impossible for a business pursuing a defamation per se claim to take advantage of the benefits of the doctrine.
In light of the foregoing, it is crucial that defamation plaintiffs pay attention to the specific law that will be applied to their case. This is particularly true where defamation occurs on the internet – i.e cases of “internet defamation.” Frequently, internet defamation cases will arise from false online statements made by one or more defendants in one or more different states against a plaintiff in an entirely different jurisdiction. Determining which state’s substantive law will apply to the case is necessary to determine whether the statements at issue are defamation per se and, thus, what must be pled and proved.
If the false statement at issue does not fall within the definition of “defamation per se” within the relevant jurisdiction, it will be considered “defamation per quod.” A statement is generally “defamation per quod” if its harmful nature can only be understood by reference to, and consideration of, extrinsic facts to explain its defamatory meaning. Often, defamation per quod is referred to as defamation by the use of interpretation or innuendo.
Making the distinction between the two types of defamatory statements can involve a nuanced analysis, especially where a jurisdiction defines “defamation per se” by reference to a concept, rather than a specifically delineated set of categories. However, to provide a straightforward illustration of the per se vs. per quod distinction, reference to an example provided by one of Ohio’s intermediate appellate court is instructive:
“[I]t would be defamatory per se to say “Sue, Tom’s wife, had a sexual relationship with Bob,” as the statement on its face causes shame and disgrace to Sue. However, the statement that “Sue had a sexual relationship with Bob” is not defamatory per se but only defamatory per quod because extrinsic evidence, or outside knowledge, that Sue is married to Tom would be necessary to establish a defamatory meaning. See Rodney A. Smolla, Law of Defamation, Section 7:20 (2d Ed.2003).” Murray v. Knight-Ridder, Inc., 7th Dist. Belmont No. 02 BE 45, 32 Media L. Rep. 2168, 2004-Ohio-821, ¶ 39.
Thus, the omission of a few words in a false and defamatory statement can be the deciding factor in how a particular defamation statement is categorized. This can make a world of difference in pursuing a claim.
Defamation Per Se vs. Defamation Per Quod
As referenced, when a statement is categorized as defamation per se, the plaintiff is typically relieved of the burden of pleading or proving the element of harm or damage. Simply establishing that the statement is defamatory per se will give rise to the presumption of harm and may enable the plaintiff to recover damages in the following categories:
- Nominal Damages: Nominal damages are a trivial sum of money (often $1.00), which are awarded to a plaintiff who has had their legal rights violated, but has not demonstrated that there was actual harm that should be compensated.
- General Damages (a.k.a. Non-Economic Damages): Compensation for past and future intangible harms, such as harm to reputation, emotional distress, and humiliation.
- Special Damages (a.k.a. Economic Damages): Compensation for actual financial or economic losses arising from the publication of the defamatory statements, such as loss of income because the plaintiff has lost a job due to the defamatory statements or the cost of a plaintiff’s medical bills for mental health treatment associated with the mental anguish arising from the impact of the defamatory statements.
- Punitive (or Exemplary) Damages: An award to the plaintiff that is intended to punish or deter the defendant from engaging in similar conduct in the future. Often, this category of damages requires a heightened degree of fault or more extreme or outrageous conduct.
The award of nominal damages in a defamation per se case is often – though not always – the minimum award to which a plaintiff will be entitled. However, a defamation plaintiff harmed by a statement that is defamatory per se will likely be able to secure one or more of the other categories of damages set forth above and secure a more meaningful recovery.
Conversely, in cases involving defamation per quod, nominal damages are not available. Moreover, the plaintiff’s claim will not be able to proceed without pleading and, ultimately, proving the existence of actual harm. Often, this proof of “actual harm” must come in the form of economic damage or loss, but may also be established through some concrete proof of reputational harm. For a variety of reasons, this can be difficult.
In defamation per quod cases, punitive or exemplary damages may also be available, but unless actual harm is established, the plaintiff may never get to the point of having punitive damages assessed.
It should be emphasized that just because the law imposes a more significant burden on plaintiffs pursuing a case sounding as defamation per quod, does not mean that victims of such false statements should not avoid pursuing a case. Statements that are “defamation per quod” can cause just as much, if not greater, harm than statements that are defamatory per se when the appropriate context is provided. Yes, sophisticated defendants seeking to evade liability often avoid making false statements that are defamatory on their face. Rather, they make these false statements in a way that is specifically designed to harm their target, but relies on innuendo and insinuations and therefore will be subject to additional scrutiny as a legal matter. The hurdles relative to a defamation per quod case can be easily overcome by securing appropriate legal counsel to demonstrate how, in fact, the false statements have caused legally cognizable harm.
Defenses
Generally, all defamation claims will be subject to a number of defenses, regardless of whether the claims are for defamation per se or defamation per quod. These defenses include absolute truth, the statute of limitation, the doctrines of opinion or hyperbole, and a variety of privileges. Additionally, dependent upon the status of the plaintiff – I.e. whether they are a private individual versus a public figure or public official – there may be a higher burden for fault.
Another particular defense that bears mention in the context of a discussion of defamation per se and defamation per quod is the defense of “innocent construction”. As discussed above, for a statement to be considered defamatory, it must be harmful on its face. If there is an ambiguity in the construction of the false statement, it is not defamatory per se and, thus, will be considered defamatory per quod.
However, some jurisdictions will take the existence of ambiguity in a defamatory statement a step further through the application of the “innocent construction” rule. Under this rule, if an allegedly defamatory statement is subject to two interpretations, one defamatory and one non-defamatory, the non-defamatory construction will be adopted – even if it is not the most obvious construction, even in context. Adoption of this construction can and will result in dismissal of a claim. While this rule is not applicable in most jurisdictions, its existence only serves to highlight that the nature of a statement and its construction under the applicable laws can have an enormous impact on the potential success of a claim.
Next Steps
If you are a victim of a false and defamatory statement and are considering legal action, you should speak with a qualified attorney to discuss the options for addressing the harm you have suffered and gain a better understanding of what you will need to prove to prevail on a potential claim. Whether your claim sounds as defamation per se or defamation per quod, there are avenues for pursuing your claim and obtaining meaningful remedies for the damage caused.
