What is defamation?

Freedom of speech is one of the most important rights in our country. That freedom, however, does not come without consequences. Certain forms of communication, particularly those which harm others, are not always free. A false communication which causes harm to a person’s reputation, known as defamation, can subject the defamer to an expensive lawsuit and damages.

In Indiana, defamation is defined as a false and malicious communication which causes damages by its publication. Actual malice exists when the party making the defamatory statement either knew the statement was false or made the statement with reckless disregard for whether it was false. Defamatory remarks are considered libel if they are made in writing and slander if they are made orally. Defamation is called “per se” if the statement in question is inherently defamatory, for example, alleging that someone has committed sexual or professional misconduct, has engaged in criminal acts, or has a contagious disease. In these and other similar instances, damages are presumed.

The statute of limitations in Indiana is two years, which means that the victim only has twenty-four months from the time the false allegations were made to bring a claim. Damages are usually calculated by finding the difference between the victim’s actual earnings and the earnings projected under a theoretical circumstance wherein the defamation did not occur. However, injunctive relief, such as being forced to remove an internet post or otherwise delete or take down written statements, can also be ordered. Courts may award punitive damages designed to punish the wrongdoer for any particularly egregious conduct and to deter future misconduct. There is no mathematical formula to determine damages in defamation cases. It is up to the Court to determine the amount needed to make the victim whole and prevent further unwanted behavior.

In order to be considered actionable, the defamatory statement must be an alleged fact which can be proven true or false. In other words, stating an opinion is typically not defamation but making a provably false statement is clear defamation. When in doubt, do not communicate statements of fact about another that could be false. If you do, you may find yourself in a legal battle and/or paying out damages.

About the Author:

Pat Murphy is an experienced trial attorney with over twenty five years of experience working with individuals and businesses to handle their litigation needs. Throughout his career he has been lead counsel on more than 100 jury trials and over 1,000 arbitrations, mediations, depositions and hearings. He can be reached at 260.423.8971 or at pat@barrettlaw.com. 

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