Per Se is a Latin term meaning “of itself” or “for itself.” Defamation per se, whether it is libel (written) or slander (spoken), is a statement that is defamatory on its face. It is a statement that is deemed to cause such great harm to the one who has been defamed that damages are presumed. The plaintiff will not have to prove actual damages to make a claim.
Either libel or slander can be actionable per se. The statement must fall into one of the following categories:
Allegations of a crime or criminal conduct
The criminal offense alleged does not have to be accompanied by certain punishment or risk of punishment, so it is immaterial if the charge alleges that a person was tried and acquitted. It is immaterial if the statement is such that the statute of limitations would have run or that the crime is not a crime where it is alleged to have occurred. It is enough that the act is a crime where the statement was published.
Allegations of any crime involving moral turpitude (an inherent baseness or vileness of principle) would be considered actionable per se. Examples of such crimes include treason, espionage, murder, rape and perjury, to name a few. Page v. Merwin, 54 Conn. 426, 8 A. 675 (1887).
A person is liable to another if he/she charges another with a crime or implies that another has committed a crime or a type of crime, even if the alleger expresses doubt or disbelief in the charge. The statement must, however, impute the person committed a crime, not that they have the capability of committing a crime or intent to commit a crime.
Allegations that the person has a loathsome disease
Under common law, decisions for these allegations have generally referred to diseases that are contracted only through sexual intercourse. Other diseases, however could fall under this category.
To be actionable per se the disease must be especially repugnant and be likely to linger or be chronic. Leprosy is included in this rule. Typhoid and AIDS could also be included, although common law has not yet addressed these diseases.
An allegation also must state that a person actually is infected with the disease. It is not enough to imply that a person had the disease in the past or may have been exposed to it, unless the statement causes the recipient to believe the person is infected at that time. Bruce v. Soule, 69 Me. 562 (1879).
Allegations that attack the person’s professional standing
For a statement to be defamatory per se under this rule, it must be such that it damages the person’s ability to pursue his/her business, trade or career. The statement must so lower a person’s business or trade reputation that he or she cannot conduct business successfully.
This rule applies to anyone engaged in a lawful business or profession or who holds a public or private office. Merchants, skilled or unskilled workers and officers or agents of a corporation are protected under this rule, as is the corporation itself.
The disparaging statement must refer to a characteristic or skill that directly applies to a person’s profession. A person who has retired, therefore, would not be defamed by a statement referring his former job. A disparagement of a general character trait would be defamatory per se only if the character trait is uniquely valuable to the person’s profession.
If a statement makes reference to a single act of misconduct, it will be actionable only if by alleging such an act, it implies that the behavior is habitual. Camp v. Martin, 23 Conn. 86 (1854); Johnson v. Robertson, 8 Port. (Ala.) 486 (1839).
A statement made disparaging someone’s goods is actionable under this rule only if the statement implies that the maker or vendor is dishonest, fraudulent or incompetent, as this rule applies specifically to a person’s reputation.
Implications that a person is immoral or unchaste
Under this rule, allegations that a person has been unfaithful or promiscuous are actionable per se only if they are leveled against a woman. A man who is imputed to have been unfaithful or promiscuous must prove damages in order to have a claim, unless the allegations constitute a criminal offense or are disparaging of his business or professional reputation, in which case, they would fall under one of those two rules. Marion v. Davis, 217 Ala. 16, 114 So. 357 (1927).
The allegations may be against a woman who is married or single and they may imply anything from general unchaste conduct to adultery. The rule does not apply to immodesty.
Although the same allegations against a man are not actionable, constitutional requirements of equality of treatment between sexes may change this. There also have been indications that relative to homosexual conduct this rule will be applied to both men and women, although there have been no decisions yet by the Courts. Nowark v. Maguire, 22 A.D.2d 901, 255 N.Y.S.2d 318 (1964).
Defamation claims that fall under any of these rules are actionable even if no special harm results from the publication. However, in each, if special harm does result, the plaintiff may recover those damages as well.
It is important to understand the application of each of these rules and how they are construed relative to libel and slander per se. The attorneys at Meyers Roman Friedberg & Lewis, LPA can help you determine if your claim is actionable per se and whether you may recover damages. Call us today at (216) 831-0042.