In any contentious civil suit, things can get heated fast, both in and out of official proceedings.
Before deciding whether or not you’ve sufficient grounds for defamation, you must first determine which strain of defamation you’re facing.
Libel is published or written defamation, while slander is spoken, typically recorded in a video or a radio broadcast. Four crucial parts of proving both is that the content in question must be published, false, injurious, and underprivileged. Proving the content was injurious entails proving the content actually hurt your reputation; proving it was underprivileged means proving this wasn’t simply an instance of ‘privileged,’ free speech, or categorized as opinion. The last is usually the hardest to prove, as the Supreme Court has set up a precedent to ensure the full protection of free speech, in cases such as New York Times v. Sullivan or Gertz v. Robert Welch.
In Milkovich v. Lorain Journal Co. the Supreme Court begins to define the thin line between opinion and defamation. Here, the court says an opinion must always merit protection when the issue is a matter of public concern, when it is expressed in a way that makes it hard to be proved true or false, and when it cannot be reasonably interpreted as factual.
Chaker v. Mateo is court decision does deal with this niche combination of defamation and child custody. In this case, the defendant posted malicious content to a website reviewing the plaintiff’s business, which insinuated that the plaintiff lacked moral character. However, due to the nature of the comments, it was predictably determined to be an instance of free speech, not defamation. The plaintiff had the responsibility of proving the allegedly defamatory statements false; while they were certainly negative, calling the plaintiff a “deadbeat dad” as well as “scary and unstable” it was very difficult, if not impossible to prove the comments as objectively false.
Basically, no matter your situation, the same rules for proving defamation still apply. No matter what you’ll want to speak with a lawyer about your chances for success–securing a successful defamation case can be exceedingly difficult.
