Another issue that must be considered in a defamation action is whether the statement is actionably disparaging. Generally, it is obvious whether a statement is “negative” and could bring the subject into disrepute. However, just because a statement is negative does not make it actionable. For example, the statement must concern itself with an alleged fact, not simply an opinion. If the defendant called you a “jerk” or an “ass,” that statement will almost certainly be deemed a statement of opinion that is not actionable. Likewise, general statements of dislike or disapproval will not generally be actionable.

In order to be actionable, the statement will have to falsely accuse you of a fact. For example, accusing you falsely of rape, or theft, or of a specific instance of dishonesty in business will almost certainly be deemed actionable. One of the tests to look at is whether or not the statement can be proven true or false. It is impossible to prove whether or not you are a “jerk,” but establishing whether or not you defrauded a business partner will be subject to proof.

Of course, proving your innocence regarding the statement is not always straightforward, but if the complained-of statement falls within these parameters, the judge will allow the claim to proceed towards trial.

Michael L. Kitchen

 Disclaimer: This blog is for information purposes only. Legal advice is provided only through a formal, written attorney/client agreement.