Defamation suit

[Zephyr]

What is the name of your state (only U.S. law)? WI

I will likely be proceeding with a defamation suit, I do not want to go into too much detail as it's pretty obvious I have been being stalked online- not sure if I have been found here...but better safe than sorry.

My business has been attacked and I have been attacked personally (online attacks). A disorderly conduct-harassment citation was issued to the perpetrator. I have emailed that person and requested all postings about me be removed.

I doubt the postings will be removed.

The police encouraged me to proceed civilly, at the time I wasn't sure.

Now after spending the weekend reading my states laws on the matter, I am pretty sure I have a very strong case.

I do have a couple questions.

In my state it isn't necessary to show actual monetary damages in order to prevail and punitive awarding of money can be done. How does one put a value on embarrassment, stress, frustration, damage to reputation etc?

Also, can one request non-monetary measures such as a permanent injunction?

Thanks...Z

 

[quincy]

This is going to be a very brief answer to begin with, Zephyr, because I have not had a chance to review Wisconsin defamation law in any depth, but I can tell you a couple things right away.

Any request for an injunction will be separate from your defamation action.

With statements that presume injury, it is up to the judge and jury to determine the amount to be awarded. This will be based entirely on the evidence you present. If the comments made about you were exceptionally egregious, a jury award can be substantial. These awards are to compensate for the mental anguish and emotional distress suffered and the reputational injury that does not come with a price tag or value attached. If you have any actual losses that can be demonstrated (business losses or other monetary losses), these should be calculated carefully or estimated realistically.

Even with presumed injury, it is important to clearly demonstrate how your reputation has suffered. Emotional distress can be shown through doctor's visits, for instance.

Punitive damages are rarely awarded.

If you have not already contacted an attorney to review the online statements made about you, you should probably do that before proceeding. Not all comments that are derogatory will be judged to be defamatory, especially when taken in the context, say, of a heated debate between posters in a forum. If there is any doubt as to their defamatory nature, courts will always err on the side of free speech. Not all seemingly defamatory comments that result in reputational injury to a person or a business, in other words, can lead to a successful suit against the communicator of the words.

 

[Zephyr]

I will definitely consult a local attorney- thank you though for explaining how a punitive award is different from damages....I had them sort of melded together in my mind

 

[quincy]

I think I might have unintentionally confused you, Zephyr.

Punitive awards are damages. These are awarded as a way to "punish" the defamer for especially malicious defamation.

Different states will call the types of damages awarded by different names, but you generally have three types of damages in a defamation action - compensatory (which compensates a person for the reputational injury itself such as emotional distress, the shunning and ridicule, the loss of esteem in a community), actual or special damages (which compensates a person for any economic losses that can be demonstrated such as a job loss, loss of a client), and punitive damages.

Most states, as a rule, do not award the punitive damages, except in the rarest of cases.

Consulting with an attorney is wise. Good luck.

 

[Zephyr]

How does the intent of the accused play into these cases....is it different when it's something that was inadvertently published but untrue than when it's a malicious campaign to cause harm?

 

[quincy]

Defamatory statements that are made inadvertantly are looked at by the courts differently than those statements that are made with an intent to do a person harm (malice). Defamation awards will reflect that difference.

Wisconsin has had several rather notable online defamation actions in recent years, with some discussion on whether online posters could be considered limited public figures for the purposes of a defamation action (which substantially changes the "fault" element in a defamation action). In addition, there has been discussion over whether a "qualified privilege" might apply to those discussing matters of common interest in a chat room or on a forum, thereby giving the posters an immunity. However, there have been no court rulings on either of these - but they are interesting.

One major Wisconsin online defamation case is It's In the Cards, Inc v Fuschetto, important most for its discussion of Wisconsin's retraction statute. Two other online defamation cases I was able to briefly review were over "impersonations" of victims in the creation of false online profiles. These cases discuss the "intent" to harm the victims through the impersonations.

At any rate, having an attorney review what was written about you would be the first step you would need to take, to see if the comments are, in fact, defamatory.

 

[Zephyr]

Thank you so much quincy!

 

[tranquility]

Damages are either compensatory or punitive. Punitive are to punish, are rare and tend to require a greater burden of proof and intent. Compensatory damages are, in tort, designed to make the party whole and are divided into general and special. Special damages are quantifiable and not speculative. The cost of a psychatrist to deal with the stress, the cost of the medication, the cost to change residences or e-mail addresses. General are more difficult to quantify, pain and suffering, loss of consortium, loss of reputation in the community and the like. Even though in slander per se or libel it is said damages are presumed, courts don't allow a lot of damages as a general rule unless there are specific damages. It happens, but lawyers are involved and use trial techniques which garner sympathy to the cause of the plaintiff.

Have an attorney review things. Defamation is not a do it yourself lawsuit and, if you haven't suffered real (or a very good argument for actual) money loss, is unlikely to really pay off. Also, because of that pesky first amendment, any type of injunction is extremely unlikely without crafting a specialized and technical argument. Prior restraint of speech is much frowned upon in the courts.