Libel Per Se and Libel Per Quod; Slander Distinguished
Defamation is a false statement about a plaintiff published to a third person without legal excuse that damages the plaintiff's reputation. Libel is defamation in written or other graphic form. Slander is orally communicated defamation.
Defamation may also be defined as the invasion of a person’s interest in her reputation and good name. Defamation is delineated into defamation per se and per quod. Historically, defamation per se has involved statements that are so obviously hurtful to a plaintiff’s reputation that the jury may presume general damages, including for loss of reputation and mental anguish. Defamation per quod is defamation that is not actionable per se.
Statements that are defamatory per se are presumed to injure the plaintiff’s reputation. But if the defamatory statement is only defamatory per quod, the plaintiff must prove the existence and amount of damages. Thus, if the court must resort to implication, innuendo, or extrinsic evidence to determine that the statement was defamatory, then it is libel per quod and requires proof of injury and damages.
For example, a publication can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation are literally true or non-defamatory.
And the test for innuendo is not how the plaintiff construes the words, but how the statement would be construed by the average reasonable person or the general public.
Libel is a written defamation of a living person that tends to: (1) injure the person’s reputation, exposing the person to public hatred, contempt, ridicule, or financial injury; or (2) impeach the person’s honesty, integrity, virtue, or reputation; or (3) publish the natural defects of anyone, and thereby expose the person to public hatred, ridicule, or financial injury. But a true statement is not actionable as libel.
Statutory libel—libelous statements within the scope of a statute defining libel—are generally libel per se. And some common law defamatory statements are libel per se, including (1) a statement that injures a person in her office, profession, or occupation; (2) imputation of a crime; (3) imputation of a loathsome disease; or (4) imputation of sexual misconduct.
Damages For Libel Per Se
There are three types of damages that may be at issue in defamation per se proceedings: (1) nominal damages; (2) actual or compensatory damages; and (3) exemplary damages. If a statement is defamatory but not defamatory per se, only the latter two categories of damages are potentially recoverable.
Nominal damages are a trivial sum of money awarded to a plaintiff who has established a cause of action but has not established entitlement to compensatory damages. In defamation per se cases, nominal damages are awarded when there is no proof that serious harm has resulted from the defendant’s attack upon the plaintiff’s character and reputation—or when they are the only damages claimed, and the action is brought for the purpose of vindicating the plaintiff’s character by a verdict of a jury that establishes the falsity of the defamatory matter. Nominal damages may be defined as a ‘‘trifling sum,’’ such as $1.
Actual or compensatory damages are intended to compensate a plaintiff for the injury incurred, and include general damages (which are non-economic damages such as for loss of reputation or mental anguish) and special damages (which are economic damages such as for lost income).
Historically, defamation per se claims allow the jury to presume the existence of general damages without proof of actual injury. But the First Amendment requires competent evidence to support an award of actual or compensatory damages when the speech is public or the level of fault is less than actual malice. Thus, the Constitution only allows juries to presume the existence of general damages in defamation per se cases where: (1) the speech is not public, or (2) the plaintiff proves actual malice.
If only nominal damages are awarded for defamation per se, exemplary damages are not recoverable. But if more than nominal damages are awarded, recovery of exemplary damages are appropriately within the guarantees of the First Amendment if the plaintiff proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice.
Damages For Libel Per Quod
Libel per quod generally requires proof of special damages, such as lost profits, decreased business traffic, or lost career or employment opportunities.