To begin, these can be exceedingly difficult cases for many reasons. First, if the person that spread the harmful words spoke the truth or even had a reasonable basis to believe the words, they spoke were true they can raise that truth as a defense and an action for defamation may not be viable or advisable. Truth is an absolute defense to defamation – slander (spoken lies) or libel (written lies). It is not enough that someone said or wrote something harmful or damaging to another, it must be provably false.
Second, the defamation must be of fact not opinion. Just because someone is abusive or vile or obnoxious in their statements and expression of views such words if merely the opinion of the person making them are not actionable for defamation. Sometimes the difference between fact and opinion can be difficult to determine. If the statement is not factual, then it is not actionable. For example, one might have a case if someone said falsely “he steals from his customers” but I probably would not have a case if someone said falsely “he’s a shady businessperson” because the latter is simply the person’s opinion.
Third, just because someone said or wrote something harmful and false about you it does not necessarily mean you have suffered compensable damages or that you can prove money damages. Certain types of defamation require the proof of special damages before you can even make a claim. Those types of defamation claims are either Slander of Libel per quod, which means that the false statement requires the proof of special damages and is not defamatory on its face, meaning you must prove additional facts to demonstrate the defamatory effect of the false statement. To prove special damages, you must show that the defamation statement caused you to lose something of monetary value like a job or a contract or business opportunity.
However, if the statement is defamatory on its face, it is slander per se, and a successful claimant need not prove special damages. Slander per se refers to specific types of false statements like a false accusation criminal activity, having a loathsome disease, false statements related to your trade or business, or false statements of serious sexual misconduct. Juries in these per se cases can presume non-economic damages. Non-economic damages include pain and suffering, emotional distress, and impairment to reputation. Non-economic damages are recoverable in instances of defamation per quod, but only after the defamed party proves special damages.
Finally, if the defamation relates to a public figure or a matter of public concern, then First Amendment Freedom of Expression issues arise, and the burden of proof is even more rigorous. When someone publishes lies about a public figure or concerning a matter of public concern, then not only must you prove the statement was false you must also prove that the defendant uttered the falsity with malice meaning with knowledge of its falsity or with reckless disregard for the truth of the statement. Indeed, under such circumstances a successful plaintiff must prove such malice by clear and convincing evidence rather than the usual burden of proof by a preponderance of the evidence.
