To better understand defamation, we must know how the law defines defamation (libel & slander).
Harry and Tom were brothers and partners. They lived in a place called AnyTown located in AnyState, USA. Since childhood they had fought over money. Tom said Harry spent too much and Harry said Tom was cheap. Their last fight was over expanding the business.
Tom believed the time was not right and the money would go to waste. Harry believed Tom’s penny pinching ways were going to keep them from staying competitive.
They argued in front of anyone who was around and complained to everyone who would listen.
Their last argument took place in front of a new customer. Harry said: “Tom you are so cheap and stubborn I could choke you. You are going to ruin the business and then we will be sorry.
Tom shouted at Harry: “I am not going to change my mind and there is nothing you can do that will change it.” With that Tom walked away. Harry shouted at his back: “oh no! We will see!”
The customer who was not accustom to business people shouting at one another left without doing any business with the brothers.
Two days passed without Harry hearing from his brother. He thought to himself: “he is sulking or hiding telling the wife to tell me he is not home.”
On the third day of Tom’s absence, the Police met Harry at his home. He was arrested. They had found Tom buried in Harry’s garden. He had been bashed in the head. An anonymous tip had led them to the garden.
Harry was an avid craftsman hobbyist. He never met a fancy tool he did not like or buy whether he could use it or not. A hammer was found in his work shop it had Tom’s blood on it.
During the trial which would find Harry not guilty it was discovered the blood was Tom’s but it was too old to fit the timeline of the crime. The new customer who had testified against Harry had to admit Harry said choke not bash. Several family and friends would testify the brothers always fought and loudly but were quick to make up.
After the trial there was the usual round of news specials where pundits retried the case, with comments from people who were witnesses and those who had not witness anything.
Because of the trial, the accusations, the articles and public comments Harry lost the business and was forced to move to another State where he hoped they remembered little about his highly publicized trial.
Which if any of these statements defamed Harry and which were opinion?
The New Customer, a traveling salesman would tell people he believed the jury got it wrong. He was sure Harry killed Tom. “I was there when Harry threatened Tom.”
A local newspaper Journalist with a tri-state readership wrote an article. He said. “He pitied Harry for having lost his business, because he was an accused murderer.”
One juror would write a book where she claimed; “She was sure the defense lawyer had hidden the real hammer.”
Late night TV personalities would joke about the next guy being careful about taking on a partner from AnyTown, in AnyState USA; who had a liking for hammers.
ELEMENTS OF DEFAMATION
“A plaintiff in a civil lawsuit must prove all the elements of the tort by a preponderance of the evidence, meaning that the plaintiff must prove that it is more likely than not the defendant committed each element of the tort. The elements of a defamation (libel or slander) claim are:”
• A false and defamatory communication about the plaintiff
• Publication to a third party
• Fault amounting to either negligence or intent on the defendant’s part
• Harm or damage to the plaintiff.
FALSE AND DEFAMATORY COMMUNICATION ABOUT THE PLAINTIFF
“A defamatory statement is a false statement of fact–not opinion, satire or parody–that would tend to harm the plaintiff’s reputation in the community. To be defamatory, the statement must clearly be about the plaintiff.”
This is a three part series:
Part I: A Story of Defamation: What qualifies?
Part II: Defaming the Living by Defaming the Dead. (TBA)
Part III: (TBA)