In this article, West & Dunn student associate Claudia Drace explains defamation law in Wisconsin and how to bring or defend oneself from these types of claims.
In the era of fake news, blogs, and social media, words like “defamatory,” “libelous,” and “slanderous” are often colloquially used to describe instances in which someone is characterized in an unsavory light. Though there is some truth to this interpretation, each of these words is also a legal term that provides grounds for a lawsuit in Wisconsin. As in many other jurisdictions, Wisconsin's defamation law is designed to protect individuals from false statements that harm their reputation.
Legally, a defamatory statement is a false, unprivileged statement that is communicated to a third party and tends to harm one’s reputation in a way that lowers one’s reputation in their community or deters third persons from associating with them. Wisconsin defamation law encompasses two types of defamatory statements: “libel” and “slander.” Libel refers to written or printed defamatory statements, while slander refers to spoken defamatory statements. Establishing a claim for slander is more complex than a claim for libel. Regardless of whether the statement was written or spoken, an action to recover damages for defamation must commence within three years.
Elements of a Defamation Claim
To bring a defamation claim, the plaintiff must plead four elements: (1) the statement is false; (2) the statement has been communicated to a third party through speech, writing, or conduct; (3) the communication is unprivileged; and (4) tends to harm the person’s reputation so that their reputation is lowered in the community, or so that third persons are deterred from dealing or associating with them.
Based on a showing of these elements, the first question in a defamation suit is whether the statement is capable of a defamatory meaning. Once the parties to the lawsuit provide the judge with sufficient proof about the statement, the judge will determine whether the statement is defamatory or innocent as a matter of law. If the judge finds that the statement could be interpreted as either defamatory or innocent, then it becomes a question of fact for a jury to decide.
Defenses Against a Defamation Claim
If accused of making a defamatory statement, there are several common defenses. For example, ”truth” is a complete defense, meaning that the statement is non-defamatory as a matter of law if it is true. For this defense to be successful, the statement just needs to be substantially true—it does not need to be entirely true. Another common defense is if the statement is an opinion. Unlike true statements, opinions are not a complete defense to defamation, meaning that a statement can still be considered defamatory if it is an opinion. Legally, there are two forms of opinion in a defamation claim—”pure opinions” and “mixed opinions.” Pure opinions are subjective expressions not presented as facts and are typically not considered defamatory. Mixed opinions blend expressions of opinion with a statement of fact. Mixed opinions are only actionable if they imply undisclosed facts as the basis of the opinion. Another common defense is privilege. A privileged statement can create immunity from liability, meaning that the statement can be considered defamatory, but the speaker may be immune from liability. A statement could be privileged if it was made in the course of legal proceedings, legislative activities, or by government officials.
Defamation Claims Brought by “Public Figures”
Another critical factor in bringing or defending a defamation claim, is whether the party who initiated the lawsuit is a public figure. Persons who are considered “public figures” include government officials, famous people, or people who have engaged in public controversy. If the plaintiff is a public figure, then an additional element is required to prove that the statement is defamatory. Specifically, the public figure bringing the lawsuit must show that the alleged defamatory statement was made with “actual malice.” This additional element aims to protect individuals who have not voluntarily placed themselves in the public eye.
To show that a statement was made with actual malice, the plaintiff must prove by clear and convincing evidence that the speaker made the statement with knowledge of, or reckless disregard for, the statement’s falsity. This is a subjective standard, so the party claiming defamation must prove that the person who made the statement either entertained serious doubts about the truth or that the person had a high degree of awareness that the statement was false.
Slander Versus Libel
In defamation cases, “special damages” means proof of a monetary loss, like loss of profits or a job. Libel (written or printed defamatory statements) is actionable without proof of special damages. Slander (spoken defamatory statements) requires a showing of special damages to be actionable, unless the statement falls into one of the following four categories: (1) imputation of a criminal offense; (2) imputation of a loathsome disease; (3) imputation of unchastity to a woman; (4) defamation affecting one’s business, trade, profession, or office. Wisconsin courts have determined that statements related to these four categories do not require a showing of special damages because they are likely to cause financial loss by their nature alone.
Need a Defamation Attorney?
With our current news and social media climate, courts have seen a resurgence of defamation lawsuits in recent years. If someone has made false statements about you that harmed your reputation or is accusing you of defamation, reach out to the legal professionals at West & Dunn online through our Contact Us page or by telephone at (608) 535-6420 for a free consultation.