01 Oct Defamation Part 2 of 3
This is Part 2 of a 3 part series on Defamation. If you missed us for the first part of this discussion click here for the article, handouts, and video. In Part 1 we covered a general Defamation outline with heavy emphasis on issues spotting. In Part 2 we are covering damages more in depth and in Part 3 we will delve deeper into those Constitutional principals; NY Malice!
Completing an analysis on damages in Defamation is similar to completing an analysis on the degree of murder in homicide. First, you must establish the common law damages that are applicable and then second, you must complete an analysis on the constitutional issues and a potentials second different damage discussion.
Common Law Damage Analysis
Under Common Law it is presumed that the plaintiff suffered general damages and requires no proof of actual damage when the defamation is slander per se or libel. These presumed damages which require no showing of proof are Presumed/General damages but keep in mind, if the defamation is not slander per se or libel there will need to be a showing of Presumed/General damages so that the jury can make an estimation of presumed damages.
Pecuniary damages are necessary to establish a prima facie case if the defamation is slander and in some jurisdictions if it is libel per quod. Once pecuniary damages are established then presumed damages are available. Pecuniary damages are QUANTIFIABLE MONETARY losses which are suffered by the plaintiff due to injury to his reputation. The types of losses that fall into this category are loss of customers, loss of job, etc. The plaintiff must present evidence of specific actual monetary losses in order to recover pecuniary damages.
Presumed/General damages, as we talked about above, are presumed under certain circumstances but in others require a showing of injury to reputation.
Punitive damages are exactly how they sound, damages designed to punish and deter future wrongful conduct. The Plaintiff must make some additional evidentiary showing of common law malice, evil intent, to recover punitive damages.
Under Constitutional principles general damages may be presumed and punitive damages awarded in two specific situations:
- Where the plaintiff can establish the defendant acted with New York Malice
- Where Common Law still applies; ie private plaintiff bringing suit for defamation as a matter not of public concern (loops you back into the Common Law Damage Analysis)
Actual damages are broader than the common law damages of pecuniary damages and include all injuries to the plaintiffs reputation. Actual damages can be awarded to the Plaintiff where negligence is the degree of fault required and there is no showing of NY malice. These damages do not need to be supported by quantifiable monetary losses but there must be some proof of the damage.
For more on NY Malice check out our final Part 3 discussion.