I had a jury trial a couple of weeks ago, in which I represented a small business being sued for defamation. There are two types of defamation: (1) Written defamation, which is called libel; and (2) spoken defamation, which is called slander. My case involved allegations of both libel and slander. In my case, a former employee accused my client, an employer of seven employees, of defaming him by giving him bad references to prospective employers with whom he had applied for truck driving positions. It took the jury less than hour to render a verdict for my client.
Why did we win? There are several reasons.First, the plaintiff simply failed to prove the basic elements. The basic elements of defamation are (1) a false statement (written or spoken) (2) made to a third person (3) that damages someone’s reputation. No one testified that my client said anything untrue to a third person. Hearsay does not get it: The Plaintiff needs someone to testify that she received a written defamatory statement from the defendant or that she heard the defendant actually speak defamatory words. Second hand evidence is no evidence at all.
Also, truth is always a defense. Anything my client actually said that might have been damaging to the reputation of the plaintiff was true. (Although, honestly, the “truth” was pretty complicated because the plaintiff and the defendant disagreed as to whether he had been fired or quit. My client contended the plaintiff had quit.) So, just because something hurts does not make it actionable. It must be false.
Third, it must damage the plaintiff’s reputation. For example, if you called Ted Bundy a thief, it would not be true. But, would that damage his reputation? Well, no, calling a serial killer a thief hardly damages his reputation. In our case, we demonstrated that the plaintiff’s reputation (albeit much better than that of Ted Bundy) was worse than anything my client had said about him. And this should be a concern for a plaintiff in any defamation case: When you put your reputation at issue, you open the door to exploring who you really are and what your true reputation is. If someone accuses you of sleeping with a co-worker, which is untrue, but you moonlight as an escort, then you probably want to reconsider bringing a defamation case.
Finally, in the workplace, there is special protection for employers. South Carolina Code §41-1-65, reads as follows:
(C) Unless otherwise provided by law, an employer who responds in writing to a written request concerning a current employee or former employee from a prospective employer of that employee shall be immune from civil liability for disclosure of the following information to which an employee or former employee may have access:
(1) written employee evaluations;
(2) official personnel notices that formally record the reasons for separation;
(3) whether the employee was voluntarily or involuntarily released from service and the reason for the separation; and
(4) information about job performance.
In order to overcome this grant of immunity, the plaintiff had to prove “the employer knowingly or recklessly releases or discloses false information.” There was no such evidence.
Your reputation is one of your most prized possessions. It is worth protecting, and I represent people who have seen lies damage their good name. But, these cases are tough. You need to know what you are getting into. My next blog post will delve into one of the thorny issues of workplace defamation.