Last year we had a miniseries on the blog that covered the top five causes of action in the cannabis industry (links to the series can be found at the end of this post). We then received a number of requests for advice or questions from existing clients about another notorious claim that seems to have been rampant lately: defamation. This week we’re going to cover the basics of defamation as it’s actually not the simple and straightforward claim you might think possible.
Defamation is essentially a false, non-privileged statement about a person. Defamation falls into two categories – defamation and defamation:
- Civil Code p. 45 defines defamation as “a false and unprivileged publication by writing, printing, picture, likeness or any other fixed representation of the eye, which exposes any person to hatred, contempt, ridiculousness or insolence, or causes them to be shunned or avoided is avoided or that tends to hurt him in his job. “In short, slander is written.
- Civil Code p. 46 defines defamation as “a false and unprivileged publication, spoken orally, and also communication by radio or by mechanical or other means …” Defamation is oral.
Defamation and defamation are further divided as “per se” or “per quod”. Defamation in itself means that the written statement is defamatory at first sight. Defamation in itself means that the oral statement implies the plaintiff with one of the following statements:
- Criminal activity
- Contagious, contagious, or hideous disease
- Unethical / incompetent business conduct (most relevant)
- Impotence or unchastity
Defamation, or defamation in and of itself, is fundamentally more outrageous and implies suspected harm. Defamation or defamation per quod is anything that does not qualify as defamation or defamation per se.
Statute of limitations
A defamation lawsuit must be filed within one year. The clock starts ticking when the statement is released – not when the plaintiff discovers it (for the most part). Publishing on a website matters!
Elements of a Defamation Claim
- Statement: This can be in any form of communication, and the statement must be a fact, not an opinion. Be careful, however – just because you start your “opinion” with qualifying words like “apparently” or “you could say” doesn’t mean that what you say is definitely an opinion. The court decides whether a statement is an actionable fact or an unworkable opinion.
- About the plaintiff: The statement must be about the plaintiff. Note: Companies are considered plaintiffs!
- Publication: Publication does not mean that the statement must be published in a magazine or popular podcast. If it is communicated to at least one person (other than the plaintiff), it is considered publication.
- Defamatory meaning: The court decides for legal reasons whether a communication is defamatory. However, if it lowers the plaintiff’s esteem in the community, it is generally defamatory.
- Mistake: The accused did not exercise reasonable care to ascertain the truth or falseness of the alleged defamatory statement.
- Root cause:
- Defamation or defamation in itself: Statements that are defamatory in themselves are so serious that causation is suspected. The plaintiff does not have to prove an actual violation.
- Defamation pro quod: The plaintiff must prove that he has suffered “particular damage” as a direct result of the defamation. Special Damage is defined as “any damage that the plaintiff alleges and demonstrates that he has suffered in relation to his property, business, trade, profession or profession, including the amounts of money alleged and proven by the plaintiff as a result of the alleged defamation … “
- Defamation per Quod: The plaintiff must prove that he actually suffered damage.
The available legal remedies are a bit nebulous and also depend on which subclaim is being asserted:
- Compensation Damage: Examples include damage to plaintiff’s reputation, damage to property, business, trade, profession, costs the plaintiff had to pay as a result of defamation, and even emotional distress.
- Injunctive relief: an order to publish the defamatory statements in the future.
- Punitive damages: If the accused is found guilty of repression, fraud or malice, punitive damages may also be granted.
In my next post, we’re going to look at a California law known as the Anti-SLAPP Act that aims to curb the number of unsubstantiated libel claims – and to complicate the calculation of their prosecution and defense.
Here are these links to our past miniseries: