“Can we sue them for defamation?” That is a question we receive very frequently from both Plaintiffs and Defendants we are representing in pending litigation. Typically, the question is a reaction to reading or hearing something alleged in the lawsuit, whether in a complaint, answer, discovery responses, or during courtroom or deposition testimony. The client asking that question usually feels that his or her integrity is being questioned, is very upset, and wants to know if he or she can “counter-sue.” In the context of litigation, the answer is no. Let’s explore why.
What is Defamation?
To win a defamation case, you must prove that:
(1) Someone “published” a statement about you. (“Publication” is a legal term of art meaning the communication of the subject defamatory matter to a third person.)
(2) The publication occurred with knowledge that the statement was false and defaming to you, or with reckless disregard for the truth, or with negligence in failing to ascertain the truth.
(3) Your reputation was injured. Damages from false or inaccurate statements cannot be presumed. Actual damages must be suffered and proved.
Brown v. Christian Bros. Univ., 428 S.W.3d 38 (Tenn. Ct. App. 2013). A statement is not defamatory just because it is annoying, offensive or embarrassing. Rather, the statement must be a serious threat to your reputation. Defamation includes both libel and slander. Libel is written defamation. Slander is spoken defamation.
But wait . . . there’s the Judicial Proceeding Exception
Statements made in the course of judicial proceedings which are relevant and pertinent to the issues cannot be used as a basis for a libel action for damages. This is true even if the statements are known to be false or even malicious.
The policy behind this rule is the paramount importance of access to the judicial process and the freedom to institute, defend, and participate in a lawsuit without fear of being sued for defamation. This exception in Tennessee may leave a wronged individual with no remedy, but our courts have determined that the rights of the individual must be sacrificed for the public good. Desgranges v. Meyer, No. E2003-02006-COA-R3CV, 2004 WL 1056603, at *5 (Tenn. Ct. App. May 11, 2004).
What should I do if I think I have a defamation, libel, or slander case?
Call a lawyer to discuss your case as soon as possible. The deadline for filing a slander suit is 6 months from the time the words are spoken. The deadline for filing a libel suit is 1 year after the words are written. Gathering and preserving your evidence is crucial. Remember you must prove not only that someone defamed you, but that you suffered actual damages.
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