Suing Your Ex for Defamation

Over the course of my nearly ten years practicing in defamation and privacy law, I have been asked on numerous occasions if it is possible to file suit against a former spouse for defamation. This question has recently popped up with a fervor due to the widespread publicity of the Johnny Depp vs. Amber Heard trial. Although every situation is unique, here are some factors that you should consider before deciding to pursue litigation against your ex.

Litigation Privilege

In the late 18^th century, The Code Duello, or the “rules of dueling,” was developed to cover the historical practice of resolving disputes through physical violence. Despite the drafters’ best attempts to “civilize” dueling, it continued to be a bloody and chaotic business, and society eventually determined that disputes involving honor or any other offense to person or property, would be better handled by the civil courts. However, for the civil courts to act as a venue for resolving controversy in a just manner, both parties would need to be free to voice their side of the story — they both would need “their day in court” without fear of future reprisals that would only extend the controversy rather than resolve it.

This is the purpose of the litigation privilege, which grants a type of immunity to the parties and their attorneys for certain acts and statements made in connection with the pursuit of litigation. For example, if the opposing party was to say on the stand during your divorce trial, “ My spouse works as a horse thief I tell you!” that statement would be privileged, and you could not sue your ex later for making a defamatory statement. I would note that, although you may not be able to sue your spouse for defaming you during the trial, if your spouse is making defamatory statements about you during the course of the divorce, particularly to third parties, you should discuss with your attorney the possibility of seeking an order from the court restraining that malicious conduct.

Q:  Why didn’t the litigation privilege stop Mr. Depp from pursuing a claim against Ms. Heard? 

           A:  The statements that Mr. Depp complained about being defamatory were made by Heard in an op-ed published in the Washington Post.  The statements in question were clearly not made in connection with the pursuit of litigation, and therefore Ms. Heard did not have immunity from suit in making those statements.

Prospective Damages

The old children’s rhyme, “sticks and stones may break my bones, but words will never hurt me,” is obviously not true. Defamatory statements can injure your reputation in the community and, if they result in loss of business opportunities, inflict monetary damage.  There are two types of relief a litigant can seek in a defamation case; a) injunctive relief and, b) monetary relief. If your request for injunctive relief is granted, the court will issue an order that requires the other party to cease making the defamatory statement(s). If your request for monetary relief is granted, the court will order the opposing party to compensate you for your damages.

Even if your former spouse has made statements that are defamatory, in Tennessee you still must be able to prove actual injury in order to obtain compensation for your damages. Statements made by a former spouse may be embarrassing or even infuriating, but often they do not result in actual damages such as a lost contract for business, termination from your job, etc. Given the debilitating financial effect a divorce has on most people, serious thought must be given, despite how angry you may be over what your ex has said, whether it really makes sense to engage in a lawsuit that, at the end of the day, could provide you with little if any recompense.

Q:  Why were damages not a barrier to Mr. Depp? 

A:  First, Mr. Depp’s suit was not filed in Tennessee, but rather in the Commonwealth of Virginia where the Heard op-ed had been published. Although I am not licensed to practice law in Virginia, it became very clear during the trial that Virginia does not require proof of actual injury in order to obtain compensation. In certain situations, one of them being where the defamatory statement would prejudice a person in his profession or trade, there is a presumed injury due to the very nature of the words themselves. Even though proof of actual injury was not required (and damages could have been left up to the jury to determine), Mr. Depp was able to show that he lost at least one film contract and several million dollars due to Ms. Heard’s defamatory statements in her op-ed. 

Anti-SLAPP Statutes

When it comes to who should pay the legal fees associated with litigation, the “American Rule” requires both sides—the plaintiff and the defendant—in a court case to pay their own legal fees, no matter who wins the case. The rule was established to ensure no one would be hesitant to file a legitimate court case due to the fear of having to pay for legal fees on both sides. In recent years, concerns over this rule acting as an incentive for “bullies” to file suits against those exercising their fundamental Constitutional rights (such as the right to free speech) have lead to the passage of state statutes barring “strategic lawsuits against public participation,” or “Anti-SLAPP” statutes.

Among other things, Anti-SLAPP statutes alter the American rule so that plaintiffs found to have filed a SLAPP suit can be held liable for the legal fees of the defendant in defending against the suit. Whether Anti-SLAPP statutes have effectively leveled the playing field, or now given those who want to defame others an upper hand in litigation by adding payment of legal fees to the plaintiff’s risk equation in filing a suit, remains a hotly debated question. In Tennessee, the Anti-SLAPP statute is titled the “Tennessee Public Participation Act” or “TPPA”.  Interestingly, to date only state courts have been affected by Anti-SLAPP with Federal courts remaining unaffected by the statutes.

Q:  Why was Anti-SLAPP not a factor in the Depp vs. Heard case?

A:  To some degree it may have been, as Virginia does have an Anti-SLAPP statute albeit it is considered a “weak” one, as it does not have, as traditional anti-SLAPP statutes generally provide, a mechanism to force a hearing to try and throw out a SLAPP lawsuit or stay discovery pending determination of whether the suit was in violation of the anti-SLAPP statute. Although Mr. Depp was at risk up until the final hearing of having to pay Ms. Heard’s legal fees in defending his suit, in the final analysis he obviously felt this risk was worth having his case go to a jury of his peers.

Summary

As discussed above, litigation privilege, prospective damages, and anti-SLAPP statutes are just a few of the factors you should consider before contemplating filing a defamation suit against your ex. As demonstrated by the case of Depp vs. Heard, defamation cases can be factually and legally complex, and it is very important that you work with an experienced legal team that understands defamation law and how to best bring your case before the court.

“Under this bill, if a legal action is filed in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action. All discovery in the legal action will be stayed upon the filing of a petition pursuant to this bill and the stay of discovery will remain in effect until the entry of an order ruling on the petition. The court may allow specified and limited discovery relevant to the petition upon a showing of good cause.”¹

The Tennessee Public Participation Act goes beyond Tennessee’s current anti-SLAPP Law (limited only to complaints made to government entities) and Tennessee’s “Loser pays” statute. Tennessee joins states such as California and Texas in passing comprehensive anti-SLAPP legislation.

Pros and Cons of the Tennessee Public Protection Act

Proponents of the bill state that this is an important measure to protect individual first amendment rights to free speech and to help reduce meritless lawsuits meant to stifle criticism and intimidate parties who may not have the resources to defend themselves in litigation. The new statute will allow a party to file a petition to seek dismissal of the defamation complaint, and the Presiding Judge can “stay” discovery proceedings (which can be costly for all parties) in order to first rule on the Petition to Dismiss under the new Anti-SLAPP law. If the lawsuit is dismissed during this proceeding, the Defendant may recover attorney’s fees. Additionally, proponents of this bill also applaud the increased protections given to journalists regarding the publication and dissemination of news information.

However, individuals opposed to anti-SLAPP laws note that this law will make it more difficult to obtain relief in a Court of law by providing excessive penalties for litigants who are only seeking judicial relief to restore or protect their reputation. Opponents may worry that individuals will now be able to make false and defamatory comments, then use this new law as a shield to avoid accountability and prevent defamed parties from seeking judicial redress.  Additionally, unlike Tennessee’s loser pays statute (which caps attorney’s fees at $10,000) there no longer appears to be a limitation on attorney’s fees. Therefore, if an anti-SLAPP case is filed and dismissed under the Tennessee Public Participation Act, a Plaintiff could be on the hook for paying a large amount of attorney’s fees in excess of $10,000.00. Litigants need to be aware of these consequences prior to filing or defending an anti-SLAPP lawsuit.

How the New Law Will Affect Social Media and Online Reviews

In today’s world, it is extremely easy for a consumer to write a negative online review against a business or individual. It is also easy for individuals to offer criticism in social media forums such as  Facebook and Twitter. The Tennessee Public Protection Act will offer broad protections for such individuals who vent on these platforms. It will also offer additional protections for consumers posting negative Yelp reviews, and other criticisms against businesses and individuals alike. As a result, citizens in Tennessee will now have broader free speech protections under this new anti-SLAPP statute. 

Regardless of your position regarding the law, all citizens need to be aware of this inevitable change prior to exercising their 1^st Amendment rights and/or considering filing or responding to a defamation lawsuit in Tennessee. Also, if you might be a party to a defamation lawsuit, be diligent about retaining an experienced and highly skilled defamation lawyer to represent you.

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¹ HB 0777 Bill Summary http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB0777

² Tenn. Code Ann 20-12-119.

Roadmap of a Defamation Lawsuit

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.