Although the laws vary from state to state, libel, written material which is defamatory of another, is generally actionable regardless of whether special harm results from its publication. This means that even if the plaintiff cannot show some kind of economic or pecuniary loss, he or she can recover for actual harm, provided the material is false, the defamer did not have privilege to publish it and the plaintiff can show at least negligence in the publishing of the material.
If the defamer did not have knowledge that the material was false and the plaintiff cannot prove negligence on the part of the defamer, the Supreme Court is now generally requiring some proof of harm to the plaintiff’s reputation in order to award damages. In some cases the court may award nominal damages if no actual harm is proven.
A plaintiff may also recover damages for special harm that is proven, even though special harm is not a requirement in a libel action.
By contrast, slander, which is spoken defamation, requires proof of special harm in order to be actionable, unless it is actionable per se. This means the plaintiff must prove some type of economic or pecuniary loss, unless the slander falls into one of the per se categories:
Special harm does not have to possess a direct monetary value but it must be a benefit that has at least an indirect monetary value to the plaintiff. The loss could be companionship or association with friends, or loss of connection with society in general, if the loss of any of these is such that it can be given monetary value. Williams v. Riddle, 145 Ky. 459, 140 S.W. 661 (1911)
A Plaintiff’s loss of reputation is not enough by itself, and emotional distress is not considered special harm even if it causes physical illness. However, once special harm is proven, a plaintiff can collect on damages for emotional distress as well.
The plaintiff also must show that the harm was caused by the defamation and came about because of a reaction by or the behavior of someone other than the defamer and the defamed to the defamatory publication.
The specific differences between libel and slander and what must be proven in a cause of action can be confusing. The law also continues to evolve as the Supreme Court considers new cases. The attorneys at Meyers Roman Friedberg & Lewis, LPA can help you determine if your case is actionable. Call them at (216) 831-0042.