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Road map of a defamation lawsuit

Disclaimer: This blog post is not legal advice. This post is intended to give a bit of background information about Defamation Law in the State of Tennessee. Each case is different and there is a meaningful distinction between having a cognizable claim and whether or not it is wise to bring a lawsuit. For legal advice applicable to your specific situation, always contact a licensed attorney in your state.

Introduction

Under Tennessee Law defamation is a cause of action alleging that (1) a defendant published a statement; (2) with knowledge the statement was false or injuring to the reputation of the plaintiff; (3) and the defendant was negligent for failing to ascertain the truth of the statement or the defendant acted with reckless disregard for the truth of the statement. Brown v. Christian Bros. Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013). The plaintiff has the burden of proof as to each element. If the defendant can show that any one of these essential elements is not met then the defendant would win the lawsuit as to the defamation claim. There are two types of defamation: slander and libel. Slander is "the speaking of base and defamatory words which tend to prejudice another in his reputation, office, trade, business, or means of livelihood." Little Stores v. Isenberg, 172 S.W.2d 13, 16 (Tenn. App. 1943). Libel is written defamation. Davis v. The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2001). Only people who are currently alive can bring claims for defamation. Estates cannot bring claims of defamation, because under the common law, defamation damages are to restore the reputation of the plaintiff, and once the plaintiff is deceased his or her reputation is no longer legally protectable.

Publication Requirement

"Publication is a term of art meaning the communication of defamatory matter to a third person." Quality Auto Parts Co. v. Bluff City Buick, 876 S.W.2d 818, 821 (Tenn.1994). Caselaw has established that all types of communication are covered; new technology for communication does not act as a shield against defamation liability. The Tennessee Supreme Court has ruled that self-publication does not satisfy the publication element of defamation, even when the publication is compelled in the employment setting. Sullivan v. Baptist Mem'l Hosp., 995 S.W.2d 569, 575 (Tenn. 1999).

Knowledge Requirement

If the Plaintiff is a public figure, then a higher standard of "actual malice" applies. This will be discussed further in the Affirmative Defenses section below. If the Plaintiff is not a public figure then the reckless or negligent standard applies. Lewis v. News Channel 5 Network, L.P., 238 S.W.3d 270, 298 (Tenn. Ct. App. 2007). A person is negligent who has a duty to act, breaches that duty, and this breach then causes damages. In defamation law actors are negligent if they should have verified the truth of their statement but did not. This is an objective standard. Persons are reckless if they have notice that their action is putting another at risk of injury but continue in the behavior in spite of their subjective knowledge of the risk. In defamation law actors are reckless if they have knowledge that what they are publishing may not be true but continue in their publication despite this subjective knowledge. Knowledge may be a discovery intensive and litigated issue in a defamation case.

Damages

In Tennessee, defamation requires actual damages to be sustained and proved. Memphis Publ'g Co. v. Nichols, 569 S.W.2d 412, 419 (Tenn.1978). "The plaintiff must plead and prove injury from the alleged defamatory words, whether their defamatory meaning be obvious or not." Id. This requirement likely results in increased litigation costs for plaintiffs in defamation cases, as proving actual damages likely requires a significant amount of evidence through costly discovery and an expert witness. Defendants may engage their own expert witness who may argue the plaintiff has not actually suffered as much or any damages under his damages calculation. Then the jury may have to choose which side to believe in a battle of the experts. See Burchfield v. Renfree, 2013 WL 5676268, at *15 (Tenn. Ct. App. Oct. 18, 2013)(discussing a battle of the experts in a negligence case).

Affirmative Defenses

Only statements that are false are legally actionable in a defamation case. The truth is, almost universally, a defense. West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 645 (Tenn. 2001). As a hypothetical example, if someone publishes on Facebook that potential Plaintiff is having an affair and potential Plaintiff sues hypothetical Defendant, hypothetical Defendant can defend the libel lawsuit by arguing that his statement is not actionable under defamation law because his statement was true; potential Plaintiff was in fact having an affair. Another example in the business context is, if hypothetical Defendant tells third parties through oral communication that hypothetical business Plaintiff has poor customer service and hypothetical business Plaintiff sues for slander, hypothetical Defendant can defend the lawsuit by arguing that this statement is not actionable under defamation law because it was true; hypothetical business does in fact have poor customer service. Statements that seem to be opinions and not facts are also difficult arguments for plaintiffs to make in defamation cases because the defendants could argue they believed the statement to be true at the time they made it, even if objectively it was not true.

In the famous U.S. Supreme Court case of New York Times v. Sullivan, the Supreme Court ruled that a libel award against an editorial advertisement in the New York newspaper was not constitutionally permissible due to the failure of the Alabama law to provide safeguards for freedom of speech and of the press as required by the First and Fourteenth Amendments. N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964). The Supreme Court adopted the "actual malice" standard that adequately protects the First Amendment rights to criticize and critique public officials or comment on matters of public interest. "We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct." Sullivan, 376 U.S. at 283. This tension between the First Amendment to the Federal Constitution and state libel laws can be a difficult and litigated issue if the Defendant is able to argue that the speech at issue is related to a public official, public figure, or comments on matters of public interest. See West, 53 S.W.3d at 647; Hibdon v. Grabowski, 195 S.W.3d 48, 62 (Tenn. Ct. App. 2005)(discussing litigation over whether the plaintiff was a limited purpose public figure).

Since the law of libel protects and awards damages for injury to the plaintiff's reputation, plaintiffs that do not have a good reputation in the community may be found by the court to be "Libel Proof." This means that their reputation is too low for them to recover any damages for any defaming of their reputation. See Davis, 83 S.W.3d at 128.

In Tennessee, the timeframe for plaintiffs to bring a claim under the statute of limitations for defamation is short. Actions for slander must be commenced within "six (6) months after the words are uttered" Tennessee Code Annotated § 28-3-103. Libel claims must "be commenced within one (1) year after the cause of action accrued". Tennessee Code Annotated § 28-3-104(a)(1). The discovery rule currently does not apply to extend the time for a plaintiff to file the claim if the plaintiff was unable to discover the slander or liable because it was concealed by a defendant. See Quality Auto Parts Co., 876 S.W.2d at 822 (discussing the application of the discovery rule to a slander claim, specifically rejecting its application in Tennessee).

Related Claims

Potential plaintiffs that may have a cause of action for defamation may also have claims for the tort of false light invasion of privacy, negligent infliction of emotional distress, intentional infliction of emotional distress, intentional interference with business relationships and other similar claims. For more information about the law of defamation, reference the Restatement of the Law of Torts §580A and §580B(discussing the model elements of defamation of a public figure and private person with comments and examples).

Conclusion

Defamation is a cause of action for written or spoken words that harm or injure the reputation of the plaintiff. Defamation requires publication, knowledge, negligent or reckless disregard for the truth, and injury to the plaintiff's character and reputation including actual damages. There are many affirmative defenses defendants may assert against claims of defamation. 

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