Let’s say you’re a highly successful individual or business with a stellar reputation for both quality and integrity, and an incredible provoker publishes a completely baseless post online painting you as a liar, thief, incompetent or at least ‘sketchy’. These are classic examples of defamation and, provided these assertions are untrue, make for a solid defamation claim with the odds of winning being overwhelmingly in your favour. So, you perhaps rush to publicly respond and sue immediately⎯doing everything in your power to kick this defamer to the curb⎯but is this always the most effective way to nip it in the bud?
The first step when you think you’ve been defamed is, of course, to assess whether it meets the legal definition and whether there is any valid defence. This should be done no matter how obvious it may seem. A defamatory publication is one which tends to lower your reputation in the minds of the ordinary right-thinking members of society generally. Negative imputations about your credibility or professional competence are usually considered to be defamatory unless the maker can prove these to be true. Even in stating an opinion or comment, the underlying facts on which it is based must be shown to be true and provide a foundation for the opinion. An assertion that a publication is on a matter of public interest is not a valid defence unless the rigid standards of responsible journalism are met.
Having determined that a publication is defamatory of you, there is still the question of what you should do about it and when? This requires a careful and thorough assessment to determine the most practical and effective approach in the circumstances. There are a variety of remedies that can be sought for defamation including a public apology by the defamer, retraction or correction, injunction requiring the removal of the defamatory material and preventing further publication, or compensation by way of monetary damages. Often, a defamed person will pursue these in turn, usually first demanding an apology and immediate removal and retraction, and, if not done, pursuing a claim in court seeking an injunction and damages. Some will pursue a claim regardless. Public statements are also commonly issued by the defamed strongly refuting the allegations made in the defamatory publication.
However, since defamation incidents are rarely ever the same, what works to protect a reputation in one scenario may not be the best in another. Even when the strength of your defamation case is clear, the ultimate objective is to minimise or eliminate harm to your reputation. If you have suffered serious harm to your reputation, then it may be that issuing a statement and pursuing litigation is the best avenue to cauterize the damage. However, not all defamatory statements will have any real impact on your reputation or brand. In that sense, an important caution is to be mindful of making public statements or bringing actions that will bring more attention to frivolous and baseless allegations.
There are some cases in which silence, or an indirect and unconventional response, may be a better approach. For instance, a defamatory publication may be so obscure and under the radar that responding publicly with statements and litigation would have the effect of increasing the exposure of the publication. Even more to the point is when an incredible (‘unbelievable’ not ‘amazing’) person makes obviously frivolous and reckless defamatory statements about you, which are clearly untrue, and unlikely to be believed by anyone of good sense. In that scenario, you are faced with the real likelihood that your response with a public statement and/or litigation may actually lend credence to the defamer who is likely desperate for the attention associated with the anticipated fight. Without public attention or believability, untrue and preposterous allegations really have no leg to stand on.
Ultimately, there is no “one-size-fits-all” when considering what to do when defamed. A multi-faceted analysis of the defamatory statements, circumstances, the defamer, and your primary objective is a must. You may be surprised about what approach can be crafted after factoring in legal, public relations, business strategy, psychology, and even ‘common-sense’ considerations. A considered and well-advised approach will always trump haste.
Stephanie Ewbank is a Partner at Myers, Fletcher and Gordon, and is a member of the firm’s Litigation Department. She may be contacted at stephanie.ewbank@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
