To Sue or Not to Sue

Before rushing to the courthouse to sue someone for libel or slander, there are a number of things one should consider. For one thing, even if no counterclaim is filed, filing a defamation action opens the door to all kinds of personal details about your life that you may prefer to keep private. To prevail, a plaintiff needs to prove that the defamatory statement was false. The defendant–the person who made the statement–doesn’t need to prove anything. Think about what that means as a practical matter. If someone Tweeted to a million followers that you are some kind of sexual deviant and that you had sex with a wildebeest (and assuming that the Tweet was understood and believed by readers as a literal statement and not as mere rhetorical hyperbole), and you decide to sue for defamation, you will need to prove that you did NOT actually have sex with a wildebeest. How does one prove such a thing? Well, generally by presenting evidence to the jury about what kind of sex life you DO have so that they can see that you are not the sort of person who would do such a thing. Or maybe you throw in some evidence about your documented fear of antelope. Either way, it could be embarrassing.

There’s also the libel-proof doctrine to consider. Because the tort of defamation is concerned primarily with damage caused to one’s reputation, some courts have held that when a plaintiff’s reputation is already so tarnished at the time a defamatory statement is published that it would be virtually impossible to make the reputation worse, the plaintiff will be deemed “libel proof” and the case will be dismissed prior to trial. If the defendant claims you are libel proof, think of what fun the discovery process will be for you, as the defendant goes about digging for evidence about how bad your reputation already is.

Then, of course, there is the well-known “Streisand Effect.” Someone makes an untrue statement about your business in a Facebook post read by perhaps 50 people, most of whom pay little attention to it. You believe the statement caused substantial damage to your reputation, as those 50 people may never buy from your company gnu.jpgagain. So you consider filing suit. Legal proceedings are open to the public. In federal court and in many state courts, complaints are available online to the media and to any curious member of the public. To survive a motion to dismiss, you will need to quote the allegedly defamatory and harmful statement in your complaint. In other words, if you bring a lawsuit, you will be effectively ensuring a much wider audience for the false statement that is supposedly causing damage to your business. People who would have never noticed or had access to the original Facebook post may come to learn of the defamatory statements simply as a result of your filing the lawsuit. Is that really what you want?

If there is a shred of truth to the statement claimed to be libelous, you should also think twice about filing suit. Under the so-called “substantial truth” doctrine, minor inaccuracies in the statement will not be considered sufficient to recover for defamation. If the statement is substantially true such that the general gist of the statement–the part that hurts–is true, then it really doesn’t matter much if there are some factual inaccuracies in some of the surrounding details. For example, if the plaintiff in the above example did not have sexual relations with a wildebeest but did have an inappropriate relationship with a water buffalo, he’s not going to be successful in a defamation action despite the literal falsity of the statement.

It may seem counterintuitive, but sometimes suing your accuser for defamation–or even sending a nasty cease and desist letter— can cause more harm to your reputation than good. It should not be undertaken lightly.

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