With the advent of the Internet, the law has developed to account for changes in technology. The law pertaining to defamation claims is not an exception, but the fundamental basis for stating a defamation claim has not changed. The reality is that the Internet’s capacity to instantaneously transmit information across the globe has rendered the damage or potential damage from a defamatory statement increasingly difficult to contain. As a result, when a person’s livelihood is heavily dependent upon their reputation, and a Google search of the Internet turns up false, damaging statements, that person’s ability to do business may be immediately impacted. Although an imperfect remedy, one of the few actions someone who has been defamed can take is filing a lawsuit against the persons responsible for the wrongful statement in order to vindicate the harmed person’s reputation. This post will address important questions pertaining to the assertion of defamation claims in New Jersey.
To determine whether or not you have a basis to sue someone for defamation, a defamation attorney will interview you with an eye toward identifying the fundamental elements of a defamation claim:
1) a false statement;
2) communication of the false statement to a third party, known as “publication”;
3) that the intent of the person(s) making the false claim were at least negligent, if not reckless or intentional; and
See DeAngelis v. Hill, 180 N.J. 1 (2004). When a defamatory statement is spoken, it is referred to as “slander.” When a defamatory statement is written, it is referred to as libel.”
The applicable intent standard will vary depending upon whether the subject of the statement is a public figure or not. The intent standard will also vary depending upon whether or not the subject matter of the statement is a matter “of public concern.” Both of these questions will be decided by the court in any given case.
It is important to realize that there are also numerous defenses that might render an offensive statement not defamatory. For example, if someone publishes a truthful statement about you that is nonetheless harmful, then that statement is not actionable defamation, whether slander or libel. Similarly, if the statement at issue is opinion and not fact, and cannot be proven true or false, it may also not be actionable.
New Jersey has a fairly strict one (1) year statute of limitations for defamation. N.J.S.A. 2A:14-3. The one year period begins when the defamatory statement is made or published. Unlike some other legal causes of action, “the discovery rule” does not apply to defamation claims. By way of example, this means that if the allegedly defamatory statement was made on January 1, but not discovered until January 31, the one year period still begins on January 1 and not January 31. It is also important to note that with respect to postings or publications on the Internet, which may appear anew each and every time someone visits a website, the one year period does not restart every time a website is visited. In this scenario, the period begins on the date of the first posting unless a substantive changes are made to the website where the defamatory statement appears.
There are three types of damages that can be recovered in a defamation case:
a) actual or compensatory damages;
b) punitive damages; and
c) nominal damages.
Actual damages are intended to compensate a victim who has been the subject of libel or slander for economic loss. Punitive damages may be awarded to punish a wrongdoer for acting maliciously or with wanton disregard to foreseeable harm. N.J.S.A. 2A:15-5.12.
Notably, actual damages may also include “presumed damages.” Presumed damages “are a procedural device which permits a plaintiff to obtain a damage award without proving actual harm to his reputation.” W.J.A. v. D.A., 210 N.J. 229 (2012). In other words, if the target of a defamatory statement fails to demonstrate a specific compensable loss, he or she may still win the case if the other elements of the defamation claim are established. In this scenario, when specific actual damages are not proven, the concept of presumed damages may result in the award of nominal damages as a “judicial declaration that the plaintiff’s right has been violated.” The concepts of presumed and nominal damages can be critical in a defamation case, where it can be very difficult to establish concrete monetary harm stemming from damage to a person’s reputation.
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