Ordinarily, to bring a lawsuit, a plaintiff must show that he was damaged somehow by the defendant. However, defamation per se is a common law cause of action that permits a plaintiff to maintain a defamation lawsuit even without a showing of damages.
What Types of Publication Are “Per Se” Defamatory?
In Washington state, any defamation committed with actual malice (i.e., recklessly or intentionally) is considered defamation per se. However, in most other states, defamation per se is defined as one of four types of false publication: (1) allegations of criminal conduct, (2) allegations of serious misconduct in one’s trade or profession, (3) allegations that another person has a contagious disease, or (4) allegations of promiscuity (or impotence).
Although a plaintiff does not have to show damages to demonstrate this form of defamation, it is still better to show damages because, otherwise, the recovery in a settlement or a jury award may be relatively small, or nominal.
Forty-four states still recognize the doctrine of defamation per se. However, in 2012, the New Mexico Supreme Court abolished it, in a case called Smith v. Durden. This means that now, in order to prevail on a defamation claim in New Mexico, plaintiffs must prove actual reputational damages—things like lost income, broken relationships, or lost economic opportunities. Mental anguish and suffering alone are not enough, and cannot be quantified as a form of damage before actual damage to reputation is proven.
Why Does the Doctrine of Defamation Per Se Matter?
Defamation per se intuitively strikes modern sensibilities as archaic. That is because generational shifts in social mores, and the advent of social media, have normalized disinformation and defamatory speech. Indeed, the Smith v. Durden court described defamation per se as a “relic from centuries past,” and “essentially obsolete in light of modern defamation jurisprudence.”
That may be true, but ironically, defamation per se is also perfectly suited to the era of social media, where toxic defamation is routine. The impulse to limit tort claims by heightening pleading and proof requirements is a noble one, because it prevents meritless actions and upholds defendants’ due process rights. But state appellate courts should not be too cavalier with this doctrine, either. Why? Because despite its archaic qualities, defamation per se is especially needed in the 21st century.
Consider the following scenario: a business competitor hires a shady content farm to review-bomb your business’s Google profile or Facebook account (we have seen this happen to defamation clients).
This is obviously malicious behavior that unfairly threatens your livelihood. Should you have to wait until your economic losses start mounting before you can sue this person? Until you can’t afford your mortgage payments? Until you file your 1040 where the losses are set forth in black and white? What about loss of goodwill? How do you even measure that? How will you know exactly which potential customers or business partners have been poisoned?
Or consider the following scenario: an influencer goes after you for criticizing him, reveals your workplace to hundreds of thousands of people on TikTok, and falsely tells his followers that you are a pervert or a criminal or a fraudster (we have also seen this happen). Is that not inherently damaging? How much damage needs to mount before you can hold this person accountable?
Defamation is not like other civil torts. It doesn’t inherently involve bodily injury or readily ascertainable dollar amounts. It is uniquely insidious—it can be incredibly damaging in ways that are remote from direct proof. In other words, defamation is easy to get away with. When a wrongful act is easier to get away with, it is naturally incentivized—and with the advent of social media, getting away with defamation is easier than ever.
Defamation is also uniquely deleterious to public discourse and the body politic, because it is a form of disinformation. Free access to large platforms, easy anonymity, physical distance from the victim, imbalance between the parties’ respective reach and number of followers… All of these factors incentivize rash and vindictive defamation. This was already apparent in 2012, when New Mexico abolished defamation per se. It is even more true, and more obvious, today. The doctrine of defamation per se is designed to punish and deter these kinds of obvious social wrongs that can be so difficult to quantify.
Invasion of Privacy Claims Provide a Possible Alternative
Fortunately, in Smith v. Durden, the New Mexico Supreme Court left one avenue open for defamation plaintiffs who lack proof of reputational damage. False light invasion of privacy is a “close cousin” of defamation, where “the interest to be vindicated is the injury to the person’s own feelings” as opposed to their reputation. Smith v. Durden, 2012-NMSC-010, ¶ 32, 276 P.3d 943, 951. The New Mexico Unfair Practices Act may also provide an avenue of relief for businesses when damages are not robust enough to bring a defamation action, but deterrence still needs to be established. The New Mexico Family Violence Protection Act also provides for protective order remedies against cyberstalking in severe cases involving online defamation. See, Best v. Marino, 404 P.3d 450 (N.M. Ct. App. 2017).
If you or your business are being defamed or harassed online, call us today. Late Night Law® is a dedicated defamation, privacy and social media law firm. If you are the target of doxxing, defamation or cyberstalking in New Mexico, in Washington, or in Texas, contact us today at (505) 225-2623 to schedule a free consultation with a defamation attorney.
This article is not legal advice, and does not create an attorney-client relationship between the reader and Late Night Law. Please consult an attorney for individualized advice if you have a legal matter.
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