- Wisconsin Defamation Law Primer
- October 12, 2016
- Law Firm: Meissner Tierney Fisher Nichols S.C. - Milwaukee Office
With the advent of social media, one of the more common calls I get, is about civil defamation claims. Today’s digital climate enables people and entities to disseminate information at the speed of light, regardless of whether that information is true or false. Unfortunately, this ability opens the door for a claim of defamation. Whether the context is business or personal, this article will provide you with an overview of the basic principles of the law of defamation in Wisconsin with the hope that you can avoid the cost and inconvenience of pursuing or defending one of these claims.
What is Defamation?
Wisconsin common law recognizes a legal cause of action for defamation that may be filed by any person based on an alleged defamatory communication made by another person. Technically, defamation consists of the twin torts of slander and libel. Slander is defamation by speaking, and libel is defamation by means of writing. When a business is involved, the tort is sometimes referred to as “trade libel” or “trade slander.” More often than not, however, the term “defamation” is used to describe both libel and slander.
A statement is defamatory under Wisconsin law if it satisfies three elements: (1) it is false; (2) it is communicated by speech, conduct, or writing to a person other than the person defamed, and (3) it is unprivileged and defamatory. The statute of limitations on claims for defamation in Wisconsin is three years.
What Must be Proved?
With these factors in mind, what exactly must a plaintiff prove in order to succeed on a claim for defamation?
The first element of falsity requires that the statement contain facts that are objectively verifiable. In other words, the statement needs to be provable as true or false. Pure expressions of opinion are usually not capable of being defamatory. However, you have to be careful because opinions can easily be blended with an expression of fact and can become actionable in light of the totality of the circumstances. Expressions of opinion can also sometimes become actionable for defamation when the opinion insinuates that it is based on some undisclosed defamatory facts.
The second element of defamation requires that the statement be published to third parties. Simply put, you cannot defame someone by speaking to them alone. Keep in mind, however, that you do not need to be the original publisher in order to be liable. You can be liable merely for repeating defamatory matter.
Usually, a defamatory statement will identify the victim by name, but not necessarily. It is sufficient in some situations that the defamatory statement refers to a person or business whose identity is easily ascertainable by a reasonable person.
The third element of a claim for defamation is that the statement must tend to harm an individual’s reputation as to lower him or her in the estimation of the community or to deter third persons from associating or dealing with him or her. Thus, a statement may be critical, unfavorable, or even insulting without necessarily being defamatory. Wisconsin courts apply a reasonable interpretation test in determining whether a statement is capable of being defamatory. That test requires that words be interpreted in the plain and popular sense in which they would be naturally understood and consider the context and circumstances under which the particular statements were made.
Again, these are the elements a plaintiff must typically prove in order to succeed on a claim for defamation. When the plaintiff is a public figure, however, that individual must usually also show that the alleged defamatory statements were also made with actual malice, meaning the court is going to look to the defendant’s intent. So, public figures have a higher bar to prove defamation given that freedom of speech issues involved.
Now that I have touched on the plaintiff’s burden in a civil defamation case, I want to briefly discuss some of the more common defenses.
First, truth is a complete defense to a claim for defamation. And by truth, we are not talking about literal truth. Rather, the standard is that the statement be substantially true. This means that some amount of inaccuracy or exaggeration is permitted. How much inaccuracy is going to be tolerated, however, is at the discretion of the Court, so you need to be careful.
Another complete defense is consent. Where it can be shown that the plaintiff consented to the publication, the defendant is usually immune from liability from publishing such statements.
Third, there are circumstances where Wisconsin law recognizes a conditional, absolute or constitutional privilege for otherwise defamatory statements. Usually, these are circumstances where the law is trying to encourage candor and the free flow of information even if it runs the risk of hurting someone’s or some business’ reputation. Examples include testimony in judicial or investigatory proceedings, or filing complaints with administrative bodies.
Relatedly, the Wisconsin legislature has exempted certain individuals and entities involved in reporting political, and other public proceedings from liability. The statutory protection is found under Wis. Stat. § 895.05. If you are involved with journalism, it may be a defense.
What About Retraction?
Retraction is technically not a defense to liability. However, timely retraction or correction will almost certainly limit the amount of damages recoverable. Similarly, a plaintiff’s failure to mitigate damages is not, strictly speaking, a defense to liability. But, like retraction, can limit the plaintiff’s damages. For example, a defendant might seek to show that the plaintiff had the ability to stop the dissemination of defamatory statements but failed to do so.
Types of Damages
Finally, I want to quickly touch on the types of damages available and proof necessary to recover under a defamation claim.
Defamation imposes strict liability on those who disseminate defamatory matter on another. Generally, a person or entity wronged by a defamatory statement is entitled to recover monetary damages. The measure of recovery is the sum that will compensate the person or entity for the damages suffered as a result of the statement. In some cases, a court can award punitive damages as punishment when the defendant’s actions are motivated by malice.
The proof necessary to establish damages in a defamation case varies with the nature of the damage that the Plaintiff is seeking. In some cases, damages for loss of reputation are presumed and the plaintiff does not necessarily need to present affirmative proof. In other situations, damages must be established by affirmative proof. This is often done through testimony from witnesses familiar with the plaintiff’s standing in the community, prior social status, and the character of the plaintiff’s business.
The law of defamation can be confusing and is renowned for its complexity. I have provided you with a simplified overview of Wisconsin’s law of defamation. Obviously, this cannot take the place of a legal opinion tailored to unique circumstances.