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WHAT IS CRIMINAL DEFAMATION?

Utah Code § 76-9-404 defines criminal defamation as a person who knowingly communicates to any person, orally or in writing, any information that they know to be false and knows will tend to expose any other living person to public hatred, contempt, or ridicule. Criminal defamation is a class B misdemeanor.

In Utah, a Class B misdemeanor is punishable by up to six months in jail and a fine of up to $1,000.00.

A criminal defamation case is a rarity. It is hard to prove the elements of defamation beyond a reasonable doubt, which is the standard used in criminal cases, as opposed to the civil standard of “preponderance of the evidence”—i.e., “more likely than not”—which is more lenient and easier to prove. Most people file a civil lawsuit when they want to sue for defamation. Examples of criminal defamation include hate speech or speech that insights a riot.

WHAT IS CIVIL DEFAMATION?

There are two types of defamation that can be litigated in a civil lawsuit: libel and slander. Libel refers to false, malicious defamation—expressed either by writing, printing, signs, pictures, or the like—(1) tending to blacken the memory of one who is dead; (2) to impeach the honesty, integrity, virtue, or reputation of an individual; or (3) to publish the natural defects of one who is alive, and thereby to expose him or her to public hatred, contempt, or ridicule.¹Utah Code § 45-2-2, Libel and slander defined. Slander involves the same foregoing elements of libel but refers to defamation communicated by spoken words.²See id.

An example of libel is falsely accusing a person—either by writing, printing, signs, pictures, or the like—of being a murderer, a cheat, a child molester, or a drug abuser. Defamation—in this case, libel—is a false accusation that a member of society has violated common standards of ethical behavior.³https://www.gallaudet.edu/tutorial-and-instructional-programs It is common to see celebrities file libel lawsuits against magazine publishers that publish false and defamatory information about them. As mentioned before, slander involves the same elements as libel, but the defamatory statements are made with the spoken word instead of the written word. An example of slander includes a news anchor saying, on air, that a politician is a child molester.

In order to constitute defamation per se, “the defamatory words must charge criminal conduct, loathsome disease, conduct that is incompatible with the exercise of a lawful business, trade, profession, or office, or the unchastity of a woman.”⁴Baum v. Gillman, 667 P .2d 41, 43 (Utah 1983)

There are different factors that constitute defamation; however, the basic concept of defamation involves (1) speaking or writing disparagingly about someone, (2) what is being said or written is untrue, and (3) what is being said or written causes damages to the person against whom the defamatory statements are made. Damages include the disparagement of one’s reputation or character, as well as money lost as a result of the defamatory statement(s) made, among other damages.

A non-defamatory statement includes “[e]xpressions of pure opinion that do not state or imply facts and are therefore not practically verifiable.”⁵Davidson v. Baird, App 8, 32 (Utah 2019)

An opinion that is not stating something specific and has not caused harm or loss to the person about whom the statements are made is not defamation. Furthermore, if you are being sued for defamation but can prove that the statement you made was true, then it is not considered defamation; truth is an absolute defense to defamation, If the disparaging statements made can be proven to be true, then defamation cannot exist. Truth, therefore, can potentially (and should) get the case dismissed.

Ordinarily, to establish a claim for defamation, a plaintiff must demonstrate, among other things, that “the statements resulted in damages.”⁶DeBry v. Godbe, 111, ¶ 8, 992 P.2d 979, (Utah 1999)

This means that the plaintiff must prove to the court that the allegedly defamatory statements of the defendant created a loss of revenue, loss of job opportunities, damage to reputation, damage to social relationships, etc., in order to be considered defamation.

It is important to be able to distinguish what kind of defamation you are facing. While libel and slander are similar, they are separate and distinct elements of defamation that require different arguments and proof. Furthermore, as noted earlier, libel is written defamation, and slander is spoken defamation. If you are involved in a defamation case, it is important to keep and collect any evidence you might have. It is also important to note any type of loss or damages you have suffered as a result of the defamatory statement. An example of damages could include someone making defamatory statements about you that cost you your job or a potential job; those would be clear, direct damages. Additionally, if someone makes defamatory statements about your business and this has caused you to lose customers and profits, and if you can prove it with compelling and sufficient evidence—proving that it is “more likely than not” that you suffered the damages alleged—the perpetrator can be sued for defamation. It is important to know the right steps to take to protect your reputation and your business. It is also important to know what you are free to say and what could potentially be deemed as defamation. Let Altiorem Legal Services look at your case today!