Should it be illegal to speak about other people?

Defamation of character occurs when someone makes a false statement about you that causes you some type of harm. The statement must be published (meaning some third party must have heard it), false, and it must result in harm, usually to the reputation. Those essential components of a defamation claim are fairly straightforward. But what kinds of harm can result from a defamatory statement, and can you recover damages for those harms in a lawsuit?

(For more on the legal requirements to bring a defamation claim, see this overview of defamation law).

Harm to Reputation
The most obvious negative consequence that a defamatory statement can cause is harm to your professional reputation. Perhaps you are a local businessperson and someone made a statement about you to others indicating that you did something dishonest. Such allegations might cause your customers to take their business elsewhere. Perhaps the statement caused your employer to doubt whether you should remain employed. Those are clear-cut examples of harm to your reputation in your professional community.

When Harm is Presumed
Some kinds of statements are automatically presumed to be defamatory. The recent Duke lacrosse scandal is definitely an example of that. There, a woman accused several young athletes of raping her at a party. It turned out that her account was not trustworthy, but the damage to those young men was profound. Any statement accusing another person of sexual misconduct, or of having a sexually transmitted disease, is "per se defamatory," meaning that it will be presumed to constitute defamation if, in fact, it was false and maliciously or recklessly made.

Accusing someone of committing a crime can harm one's personal or professional reputation. An accusation of criminal conduct also is presumed to be defamatory.

Similarly, an allegation that someone is racist or is otherwise prejudice likely will be presumed to be defamatory because it can cause strong reactions in the community. It is important to bear in mind, though, that expressions of opinion about you, even if they are negative, are not defamatory. Opinions are protected speech. Likewise, if someone relates an embarrassing incident involving you, that is also not defamatory because embarrassment does not rise to the level of a defamatory statement, and if the statement is true, your lawsuit will be barred.

Financial Harm
Of course, financial consequences often go hand-in-hand with harm to reputation. If you lose some business or lose your job altogether, you could seek compensation for those financial losses. If you lose business opportunities and can tie that to the defamatory statements, that is also a form of financial harm for which you can seek recovery. If you incur expenses as a result of taking steps to repair your reputation, you may include those losses in a defamation lawsuit.

Mental or Physical Anguish
Another type of harm suffered by victims of defamation may well be health problems, ranging from insomnia, to depression and anxiety, to physical ailments. Enduring someone's publication of a false statement about you can take a toll on your mental and physical health, and those harms may be compensable.

Methods of Proof
In many jurisdictions, if you can prove that someone made a false statement about you knowingly or recklessly, and published it to other parties, you have established a claim of defamation and it will be presumed that you have suffered harm. If, however, your jurisdiction does not follow that rule, or if you are a public figure or official who is in the public eye (someone who more routinely faces negative statements), you may have to prove you were in fact harmed by the defamatory statement.

In order to establish that your reputation has suffered, in addition to your own testimony, you would need to provide witnesses who could testify that that effect. You could produce evidence that you lost your job, that you were demoted or passed over for a promotion, or suffered other adverse consequences that can be tied to the defamatory statement.

To prove financial harm, you could testify about the monetary effects of the defamation, but you may also need other documentation, such as bank statements, bills, or tax returns, to back up your claims.

To prove mental or physical anguish, you would testify about the severe effects the defamation has had on you. You would also need to provide lay witnesses, such as a spouse, a relative, and/or a close friend, to testify about the noticeable changes in you as a result of the incident. However, you most likely would also need your doctor or other treatment provider to testify about your treatment, if you have had any. You would need to show that any mental health or physical health consequences indeed resulted from the defamatory statement and were not pre-existing. If they were, your doctor would need to explain how the defamatory statement worsened your condition. You would also want to provide medical bills to show what the treatment cost you out of pocket.

If the opposing party is likely to claim that your reputation was already poor, or that whatever problems you are claiming to suffer from now weren't caused by the alleged defamation, you will need to anticipate that and provide witnesses who can counter those arguments.

Remember that someone expressing a negative opinion about you, or even relating an embarrassing anecdote about you, is not the same as making a false and defamatory statement. To understand the nuances of defamation, you may want to consult with an experienced personal injury lawyer, who can tell you whether you have solid legal grounds to file a defamation lawsuit.