In the last two weeks, people have talked to me or written to me about at least four separate incidents concerning defamation. Importantly, if you are accusing someone of being dishonest, being a thief, doing something illegal, doing something sexual, being a predator, or such language, you could be defaming someone. Chances are you didn’t see them do it and you could be repeating something false.
What should you do if you have a problem with someone? First, go straight to the person and discuss your issues. Second, don’t go to all their friends, co-workers, bosses, and try to turn them against the person. Third, talk about a specific behavior that is a problem. For example, I could say that my cable company is dishonest. But wouldn’t it be less of a problem if I told you what happened? One representative told me I could get a better package but when I talked to another representative, he told me I couldn’t. One of the representatives told me a lie. Was it just a misunderstanding on my part? Maybe it does not matter that I am saying this about a big company but it might make a difference for a small company or an individual struggling to keep his or her job.
We all have to live in a community together. If we go around talking bad about other people without giving the person a chance to fix the problem, our community will not be a nice place to live, work, play, or go to church.
Elements of Defamation
The elements for a defamation claim are: “(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 281–82 (Ky. 2014), as corrected (Apr. 7, 2015). “[W]ords are said to be actionable per se when there is a conclusive presumption of both malice and damage. One example of this per se classification is a communication involving false allegations of unfitness to perform a job.” Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014), as corrected (Apr. 7, 2015).
Defamation Per Se
Some of these categories of per se defamation are words that “tend to expose the plaintiff to public hatred, ridicule, contempt or disgrace, or to induce an evil opinion of him in the minds of right-thinking people and to deprive him of their friendship, intercourse and society. But it is not necessary that the words imply a crime or impute a violation of laws, or involve moral turpitude or immoral conduct.” Columbia Sussex Corp. v. Hay, 627 S.W.2d 270, 274 (Ky. Ct. App. 1981). Statements classified as defamatory per se include those which attribute to someone a criminal offense, a loathsome disease, serious sexual misconduct, or conduct which is incompatible with his business, trade, profession, or office.” Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 61 (Ky. Ct. App. 2006).
Difference between Defamation Per Se and Per Quod
“If words are defamatory per se, damages are presumed and the plaintiff may recover without alleging or proving special damages.” Id. If the words do not fall into the per se category, then are defamatory per quod. Id. To recover for per quod defamation, there must be “an allegation and proof of actual damages.” Id.
“To have a successful defamation claim when the issue involves a public figure, the plaintiff must prove that the defendant made a false statement about the plaintiff and prove by clear and convincing evidence that “it was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ Palmer v. Alvarado, 561 S.W.3d 367, 371 (Ky. Ct. App. 2018), review denied (Dec. 5, 2018).
“Proof of actual malice is frequently circumstantial so that the reckless disregard of truth or falsity or the actual knowledge of falsity can generally be inferred only, rather than proven directly.” Kentucky Kingdom Amusement Co. v. Belo Kentucky, Inc., 179 S.W.3d 785, 790 (Ky. 2005).
Kentucky Kingdom Case Against A Reporter
The Kentucky Supreme Court found that the jury had enough proof to find actual malice against a TV station:
Kentucky Kingdom has gone to considerable detail in its brief to recite a variety of factual situations indicating actual malice. Among other items of evidence are the following three examples: 1) WHAS–TV broadcast the “too dangerous” allegation after it received specific knowledge that the claim was false and after flagging its scripts questioning the accuracy; 2) It broadcast that the “ride malfunctioned” three times after its own records reflected that state inspectors had not said the ride malfunctioned, and twice after acknowledging to the amusement park that this charge was wrong and that it would be corrected; and 3) The reporter for the TV station admitted that his “removed a key component” report concerning the dispatch motor brake was false and that he misrepresented a tire motor brake as a reducing brake that stops the cars.
Kentucky Kingdom Amusement Co. v. Belo Kentucky, Inc., 179 S.W.3d 785, 790–91 (Ky. 2005).
Julie Tennyson is an attorney at Marcum Tennyson PLLC. She has practiced law for over 16 years. To have a quick consultation, please click the following link to schedule a telephone appointment: https://marcumtennyson.cliogrow.com/book/kKiqW8yA1bA6HLxzk5Tfjg