Damages Do Not Prove Defamation

Damages do not prove defamation.

A quick but very important aspect of defamation law.

If someone defames you, and that defamation results in a gazillion dollars in damages, then of course those damages will be highly relevant to the action.

But if someone says something about you that is not defamatory, and you suffer the same gazillion in damages, then those damages are irrelevant to any defamation analysis.

This seems self-evident, but I find myself in this conversation on a regular basis (with varying fact patterns):

Caller: “I was in a restaurant, and I yelled at the waiter when he got my order wrong. I didn’t realize that one of the other customers was recording the exchange with his cell phone. He posted the video on YouTube, and as a result I lost my job and I’m receiving death threats. I want to sue for defamation. I’ve suffered a minimum of $100,000 in lost wages, and another ten million in emotional distress damages.”

Me: “Well, we first need to establish if what was posted is defamatory. When you sue for defamation, you must list the exact statement that you are contending is defamatory. In your case, what would that statement be?”

Caller: “Of course it was defamatory. People are threatening to kill me! Did you hear the part about the $100,000 in lost wages?”

Me: “I did. But the quantum of harm is only important if we first establish the statement was defamatory. If I tell the truth about you, and that truth somehow damages you, that would not be actionable just because you were damaged. What is the statement you are contending was false and defamatory?”

Caller: “I just don’t understand what you are asking. The video put me in fear of my life. That is the defamation.”

Me: “I hear you. But I want you to envision me sitting at my keyboard, preparing the complaint I will be filing to sue for the damages you sustained. I have to list the statement that is defamatory. It will start with a quotation mark, then the statement, followed by punctuation and then another quotation mark. What am I going to type between those two quotation marks? In the case of a video, that statement may simply not exist. By definition, a video of you that accurately portrays what occurred cannot be false. The only possible basis for an action in such a case would be if the video has been selectively edited to put you in a false light. Is it that kind of situation?”

Caller: “There is no ‘statement’ from the person who posted it. He just put up the raw video.”

Me. “Then what is it about the video that has people so upset?”

Caller: “I told the waiter he should go back to his country. That made me look really bad, and the guy who posted it knew it would make people hate me. That’s why he posted it. He is responsible for all the damages I have suffered.”

Do you see the absurdity of this position?

Let’s take Bernie Madoff as an example. As you may recall, it was his sons, Mark and Andrew, who announced that Madoff’s investment company was nothing but a $64 billion Ponzi scheme. As a result of that disclosure, Madoff was arrested, convicted, and sentenced to 150 years in prison, where he died.

Thus, Madoff suffered incredible harm as a result of what his sons reported, but would anyone seriously contend that Madoff could have sued to recover those damages? What they said was true. Damages do not prove defamation.

To use another high-profile example, some 26 years later Monica Lewinsky is still suffering harm resulting from the disclosure of her tête-à-tête with Bill Clinton by someone she viewed as a confidant. Again, the quantum of harm is immense, but that does not make the factually correct disclosure somehow actionable.

Now, as is always the case, context is everything. There are situations where stating a true fact can still lead to liability, but only where there is some independent basis for that liability. “Honestly” posting all the contact information about your arch nemesis won’t save you from an anti-doxing law. Posting “accurate” naked photos of your ex won’t protect you from California’s revenge porn statute. But even these examples would not support a defamation action, since there is no false statement.

One unique aspect of defamation law.

Unlike any other tort, it is not necessary to prove damages in order to prevail on a defamation claim. If the plaintiff proves all the elements of defamation, the jury is instructed that it “must” award damages. The elements of defamation are:

“(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” Sanchez v. Bezos, 80 Cal. App. 5th 750, 763 (2022).

As you can see, the damages element is stated in the alternative. The defamatory statement must have a “natural tendency to injure or that causes special damages.” The law recognizes that one’s reputation has value, and the damage to that reputation might not be quantifiable. These are called the “assumed” (or presumed) damages. The plaintiff can also recover “actual” damages, which are precisely what the name implies. These are the measurable damages that flowed from the defamation, such as lost wages, lost profits, etc.

Actual and assumed damages in the real world.

The distinction between these two types of damages is illustrated within the employment context. Let’s say an employer terminates you, falsely accusing you of embezzling  from the company. You then go in search of a new job, but despite your impressive credentials, no one hires you. Finally, one prospective employer feels bad for you and let’s you know that you are getting terrible references from your former employer. You had thought that your former employer was not permitted to tell prospective employers why you were terminated, but it turns out there is no such prohibition, and your employer is telling the lie about you embezzling.

If you can line up some prospective employers willing to testify that they did not hire you because of what they were told about your alleged embezzlement, the pay you lost as a result would be the actual damages. But that can be very hard to prove. The prospective employers likely won’t want to get involved, so you won’t be able to provide a single example of that being the only reason you were not hired. There are a number of intangibles as to why someone is hired over others. Even if your former employer did not mention the alleged embezzlement, that does not mean you would have been hired.

That is a situation where the jurors would likely conclude that while you did not prove any actual damages, common sense dictates that your inability to find work is likely related to your loss of reputation. They would be free to award assumed damages on that basis.

But none of this changes the fact that the quantum of harm suffered is of no importance unless and until it has been established that the defendant defamed the plaintiff. To analyze a possible defamation case, that must be the first determination.

What about other possible claims?

Just because your facts do not create a defamation action, does not mean that you are left without a remedy. There may be other legal theories that you can pursue.

But here is another crucial concept to keep in mind.

Free speech is a cherished right in this country. So long as your speech does not cross the line into defamation, you should be able to say what you want without fear of retribution. But if non-defamatory speech could somehow support other claims, free speech would soon have little meaning. For this reason, the law does not permit an “end-run” around the elements of defamation by seeking damages under a cause of action by a different name.

Let’s go back to our example of Monica Lewinsky. She suffered tremendous harm as a result of the breach of confidence by her purported friend. But she can’t sue for defamation, because the statements by her friend were true. Inexperienced attorneys will try to get around this roadblock by instead alleging a cause of action for Intentional Infliction of Emotional Distress (“IIED”). The elements of a cause of action for IIED are as follows: (1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress.

There you go. IIED has nothing to do with the truth or falsity of the statement, instead requiring only that the plaintiff suffered emotional distress as a result of defendant’s outrageous conduct.

It doesn’t work that way. Plaintiff is still suing for defendant’s speech, and that speech cannot be the basis for damages if it was true. Or, if you prefer, the speech does not rise to the level of “extreme and outrageous” if the defendant was merely speaking the truth.

Are there any exceptions?

It serves little purpose to offer hypotheticals where truthful speech could still be actionable. You now have the tools to analyze your own unique situation. But I’ll offer one simple example, to get you thinking.

Let’s say you have a crazy neighbor who screams at you every time you go outside your house. “You need to mow your lawn!” “Your car is an eyesore!” “You leave your trashcans out too long.”

I hope you will agree that no matter how annoying you find them, those statements are not defamatory. I get callers who want to argue the point, claiming the statements are provably false because they can provide evidence that their lawn is not in need of mowing, and they promptly bring in their trash cans, but the statements are just nonactionable opinions. However, under these facts, the plaintiff could prevail on a claim for nuisance, because that would not be an action for what is being said, but rather for the way it is being said. A judge would likely find that the plaintiff should be able to go outside without being screamed at.

And be sure to read, A Statement is Not Defamatory Just Because it is False and Don’t Sue for Defamation Unless the Statements Really are False.