Telling lies about someone is certain to cause hurt feelings at a minimum. Sometimes, disseminating a false statement can cause the subject to suffer reputation damage that leads to economic loss. This can create the basis for a lawsuit for defamation, whether it was “libel” (written false statements) or “slander” (spoken false statements). However, tort reform in Michigan has created several limitations and necessary procedures that, if not followed, can affect or deny the ability to recover. If you pursue a defamation claim, then it is imperative that you retain an attorney that understands all of the loopholes in the law.
To prevail in a defamation suit, the plaintiff has the burden of proving ALL of the following by a preponderance of the evidence (Model Civil Jury Instruction 118.05):
- Defendant made the statement of fact complained of to a third person by printing, writing, signs, pictures, words and/or gestures.
- The statement was of and concerning the plaintiff.
- The statement was false in some material respect, and the statement had the tendency to harm the plaintiff’s reputation.
- As a result of the statement, the plaintiff suffered some damage.
In defamation actions, the plaintiff is entitled to recover only for the actual damages which he or she has suffered in respect to his or her property, business, trade, profession, occupation, or feelings. MCL 600.2911(2)(a). Actual damages include, but are not necessarily limited to, injury to reputation, mental suffering, embarrassment, humiliation and economic loss to business provided that these losses can be proven by legally admissible evidence AND are proximately related to the defamation.
However, Michigan recognizes some false statements may be defamation per se, meaning that the damages to reputation and feelings are presumed (no need to allege or prove special damages) if the defamation includes the following topics under MCL 600.2911(1).
- Words suggesting a lack of chastity to any female or male.
- Words suggesting the commission of a criminal offense.
In all other libel or slander that is NOT defamation per se, actual damages (e.g. economic damages, compensatory damages, etc.) must be specifically pled and proven. There are special rules, however that apply to damages for libel (which includes radio and television broadcasts under Michigan law) pursuant to MCL.2911(2)(b):
- Exemplary and punitive damages shall NOT be recovered in actions for libel UNLESS the plaintiff, before instituting his or her action, gives notice to the defendant to publish a retraction and allows a reasonable time to do so, and proof of the publication or correction shall be admissible in evidence under a denial on the question of the good faith of the defendant, and in mitigation and reduction of exemplary or punitive damages.
- For libel based on a radio or television broadcast, the retraction shall be made in the same manner and at the same time of the day as the original libel.
- For libel based on a publication, the retraction shall be published in the same size type, in the same editions and as far as practicable, in substantially the same position as the original libel.
- For other libel, the retraction shall be published or communicated in substantially the same manner as the original libel.
There are additional restrictions on defamation actions that you should be aware of:
- Public Matters Privilege: “Damages shall not be awarded in a libel action for the publication or broadcast of a fair and true report of matters of public record, a public and official proceeding, or of a governmental notice, announcement, written or recorded report or record generally available to the public, or act or action of a public body, or for a heading of the report which is a fair and true headnote of the report.” MCL 600.2911(3). This is a qualified privilege claimable by the defendant. Kurz v Evening News Ass’n, 144 Mich App 205; 375 NW2d 391 (1985).
- Public Figures: “An action for libel or slander shall not be brought based upon a communication involving public officials or public figures unless the claim is sustained by clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether or not it was false.” MCL 600.2911(6). This is also a qualified privilege under the First Amendment claimed by the defendant, but whether or not the plaintiff was a “public figure” is a question of fact for the judge or jury to decide. Bufalino v Detroit Magazine Inc, 433 Mich 766; 449 NW2d 410 (1989).
- Private Individuals: “An action for libel or slander shall not be brought based upon a communication involving a private individual unless the defamatory falsehood concerns the private individual and was published negligently. Recovery under this provision shall be limited to economic damages including attorney fees.” MCL 600.2911(7).
The plaintiff must prove each and every element of the defamation claim to prevail. If even a single element fails, the defendant is entitled to a verdict in his or her favor. The defamation suit will NOT succeed if ANY of the following occur:
- No False Statement: The plaintiff cannot win if the defendant can prove that the statement made about the plaintiff, no matter how untasteful the subject matter, is absolutely true. In fact, initiating litigation may simply draw more attention to the true statement that the plaintiff did not want revealed.
- No Publication: A false statement made by the defendant to the plaintiff is not defamation if there was not a third-party present to read or hear the false statement.
- No Damages: Unless the statement was defamation per se, the plaintiff has the burden of proving that there were actual damages as a result of the false statement. Without proof of harm, no judgment will be awarded.
Michigan law has made recovery for libel and slander much more difficult, but not impossible. If you believe you have grounds for a defamation action, you should consult with an experienced lawyer as soon as possible. The statute of limitations for an action charging libel or slander is only 1 year from the time that the false statement was published. MCL 600.5805(11). After one year, the ability to sue under this claim is barred forever.
If you have further questions about defamation or you need legal representation, then do not hesitate to contact the attorneys at Kershaw, Vititoe & Jedinak PLC today.