Defamation. Are you talking about me?

10.16.2023

Author: Attorney Adam Sorrentino

Potential clients frequently ask me to pursue a defamation case on their behalf. Typically, this happens in the midst of a heated family case, when a restraining order is filed, or even when someone receives criminal charges. Many defamation cases can fall flat before they begin. Wisconsin law contains many specific requirements and exceptions that prevent a straight forward recovery. An injured party may attempt to pursue a defamation claim in criminal or civil court. As a private attorney, I will only be referencing a civil matter in the discussion below.

A plaintiff with a civil defamation claim must prove all of the following : (1) the statement was false, (2) the statement was communicated orally or in writing to a third party, and (3) the communication is unprivileged and harms the individual’s social reputation. Unfortunately, Wisconsin statutes have additional requirements and exceptions that can disrupt a defamation claim.

Defamation cases have several defenses and exceptions that can cause a claim to fall short. Several common defenses include that the statement was true; that the statements made were in the form of an opinion, not a fact; or that the statements made were protected by some form of privilege. There are also several statutory requirements that a plaintiff must meet before attempting to recover. For example, Wis. Stat. §895.05 requires a potentially harmed individual to give the publisher of the statements the chance to correct those statements to limit or negate any damages. These defenses and statutory requirements must be considered when determining the likelihood of a successful claim.

Finally, a consideration that is often overlooked is quantifying your loss and the ability to recover from the defendant if you were to succeed at trial. Courts refer to the amount someone can recover for the harm they received as “damages.” Generally, damages are separated into two different categories, “special damages” and “general damages.” Special damages are quantifiable, e.g., loss of business, new clients refusing to work with you, and clients canceling contracts. General damages are more difficult to quantify and are based more on personal experiences. Emotional distress and pain and suffering are examples of general damages. Because instances of defamation are generally emotional in nature, quantifying a specific amount of damages can be difficult.

A popular example of a defamation case occurred in 2001, when professional rapper, Eminem, was sued for defamation by his mom, Ms. Mathers, after he had referenced her in one of his songs. Ms. Mathers had originally requested $11 million in damages from Eminem. After the entire lawsuit, she received a $25,000.00 award, of which her attorney received the majority of, while she walked away with $1,600.00. While she was able to prove defamation occurred, Ms. Mathers was unable to substantiate the $11 million she initially requested and ended up walking away with little because of the legal costs of the action.

Most defamation cases require the parties to litigate whether the statements made were true. To receive a significant damage award, the injured party must also have detailed proof that demonstrates how the statements directly caused them harm. These issues do not lend themselves to resolution without a full trial. As a result, defamation claims can be very costly to pursue. Before you decide to pursue a defamation claim, be sure to evaluate whether you have adequate proof and that the costs of bringing the claim will not exceed the damages.