What are the elements of defamation?

The elements of a defamation claim are:

1. A publication of a false statement to a person/persons other than the plaintiff;
2. The person/persons who heard the statement reasonably understood that the statement was about plaintiff; and
3. Reasonably understand the defamatory nature of the statement; and
4. The defendant failed to use reasonable care to determine the truth or falsity of the statement.

See CACI Jury Instruction 1704.

Note that although in the usual defamation claim, it is the defendant who communicates the defamatory statement to a third party, you may also have a defamation claim under the theory of "compelled self-publication." This happens when you are compelled to communicate the defamatory statement about yourself to a third party. For example, you may be compelled to repeat the defamatory statements your employer made about you when you have to explain to your prospective employer the stated reason you were separated from your previous employer.

Also note that the elements described above are elements that a private figure plaintiff must prove regarding defamatory statements of a private concern. This is the type of situation that most employment claims arise out of, but there are special laws with respect to public figure plaintiffs (e.g., politicians, celebrities). For purposes of this blog, we will limit our discussion to private figure plaintiffs until we get comments from readers who want to know more about how defamation law works with respect to public figures.

What damages need to be proved in a defamation claim?

In some cases, a plaintiff does not need to prove damages because the damages are inherent in the defamation. In other words, the harm caused to the plaintiff's reputation is already apparent. Inherently defamatory statements are known as defamation per se. In all other cases in which damages are not inherent in the defamation, a plaintiff will need to prove "special damages," which includes damage to reputation, emotional distress, humiliation, anxiety, etc. Punitive damages are also available in defamation cases if there is clear and convincing evidence that the defendant acted with malice, oppression, or fraud.

What awards are available in cases with defamation claims?

Damages awards for defamation lawsuits or lawsuits with defamation and other employment-related claims can be significant. For example in the recent case of Chopourian v. Catholic Healthcare West, the award for the plaintiff's defamation claim alone was over $24 million. The plaintiff in that case was a 45 year-old former operating room nurse who was subjected to a sexually hostile work environment. Performance write-ups, internal e-mail, and notes created by management contained false facts concerning the plaintiff's work performance and professional abilities. Because of these false statements, the plaintiff was unable to find work for nearly a year. She sued the hospital for defamation plus wrongful termination, retaliation, national origin discrimination, and sex discrimination and harassment and was awarded a whopping $167 million total at trial.

Nine figure verdicts like Chopourian are rare, but they illustrate that because harm to reputation is something that anyone can relate to, juries take these claims very seriously and award significant sums where they believe harm to reputation was caused by a defendant's wrongful conduct. Other examples of awards in cases with defamation claims include:

• Hanselman v. Morrison Robertson, Fedex Corporation, et al.: An Alameda Court jury awarded $728,090 in compensatory damages to a Federal Express employee who had been terminated and falsely accused of theft. The matter was resolved before the punitive damages phase and it is likely that the verdict would have been much higher if it had gone into the punitive damages phase.
• Baker v. PrivatAir, Inc.: Verdict against first defendant for employment-related defamation totaled $14 million, plus $10 million in punitive damages; verdict against second defendant totaled $10 million for defamation, plus $10,000 in punitive damages; verdict against third defendant totaled $2 million for defamation, plus $1,500 in punitive damages; and verdict against fourth defendant totaled $10 million for defamation, plus $2,500 in punitive damages.
• Hughes v. Carpenters 46 Northern California Counties Conference Board: Jury found the defendant liable for defamation and awarded $2,470 for past medical expenses, $22,500 for future pain and suffering; $75,000 for past pain and suffering, and $1.5 million in punitive and exemplary damages.
• O'Lee v. Compuware Corp.: Jury awarded $1 million in presumed damages, $150,000 in actual damages and $10 million in punitive damages in defamation action.
• Burdette v. Carrier Corp.: Jury awarded $500,000 for damages to reputation and more than $3.5 million in punitive damages.
• Haist v. B.F. Goodrich, Inc.: $500,000 verdict for slander.
• Arnold v. America Online Inc.: $5 million verdict for wrongful termination and defamation.

Moreover, in a harassment and discrimination case that we litigated at Greenberg & Weinmann, Giugliano v. BKM Enterprises, Inc., we obtained a $1.5 million jury verdict, $650,000 of which was compensation for the defamation portion of the case alone based on only one false statement published to one individual. Similarly, in another case, we successfully cross-appealed summary adjudication of the plaintiff's slander cause of action (after prevailing at trial on other theories), and thereafter obtained a $300,000 settlement on the defamation claim where the provable publication of the defamatory statement was only through the theory that the plaintiff was compelled to self-publicize the defamation when explaining to prospective employers about the reason for his termination.

What is the difference between a defamation claim and a false light claim?

Defamation and false light claims are closely related in that they both protect people from offensive and/or false facts stated about them. While defamation concerns statements that are actually false, false light is about false implications. A person can sue for false light when something highly offensive is implied to be true about them that is actually false even if the words themselves are technically true.

The difference between defamation and false light can be illustrated by Gill v. Curtis Publishing Co. (1952) 38 Cal. 2d 273, the case that established false light in California. In Gill, the "Ladies Home Journal" published an article criticizing "love at first sight" as being based on nothing more than sexual attraction. The author said such love was "wrong" and would lead to divorce. The article featured a photo of a couple, with the caption, "[p]ublicized as glamorous, desirable, 'love at first sight' is a bad risk." The couple, who did not know the photo had been taken, sued. Although the journal did not actually say the couple was engaged in the "wrong" kind of love, the implication was clearly there. The couple prevailed by proving the magazine created a false impression of them.

What are the elements of false light?

The elements of a false light claim are:

1. Defendant published information or material that showed plaintiff in a false light;
2. The false light created by the publication would be highly offensive to a reasonable person in plaintiff's position;
3. There is clear and convincing evidence that defendant knew that the publication would create a false impression about plaintiff OR defendant acted with reckless disregard for the truth OR defendant was negligent in determining the truth of the information or whether a false impression would be created by its publication;
4. Plaintiff was harmed; and
5. Defendant's conduct was a substantial factor in causing Plaintiff's harm.

See CACI Jury Instruction 1802.