Simon PLC Attorneys & Counselors – November 2024 Memorandum
DEFAMATION AND OTHER ATTACKS ON YOUR REPUTATION IN MICHIGAN
Troy, MI. Lawsuits seeking the recovery of damages for attacks on personal reputation are seemingly on the rise in Michigan. Simon PLC Attorneys & Counselors is processing more and more frequent cases where these issues are implicated. What might have started as a simple contract dispute suddenly exploded into a much more contentious matter based upon a comment or a threat made by one party or their associates, friends or family regarding the other party. The rise of social networks, digital devices and “keyboard warriors” have all led to an environment where reputations can be destroyed in an instant to a much larger audience than ever before.
In our everyday lives these concepts are routinely referred to as character assassination, lies, slander, libel, or other similar ideas. In Michigan, this concept generally falls under the rubric of a defamation claim. “The elements of a defamation claim are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement irrespective of special harm (defamation per se) or the existence of special harm caused by publication.” Bedford v Witte, 318 Mich App 60, 64-65; 896 NW2d 69 (2016).
Analyzing the offending statement successfully through the separate parts of this test ultimately leads to an analysis of part 4. There must have been harm, or a damage, suffered by you from the statement. If someone said something but it didn’t harm you, or it was laughed off as absurd, you may not have a claim for defamation. Harm is a critical component of a defamation claim. Unless you can prove that you suffered harm, there can be no claim for defamation.
Harm can be broken down into two categories. The first category is “defamation per se”. In Michigan, defamation per se means certain statements automatically cause harm and the law will not allow them to stand. Statements are defamation per se if they falsely impute that a criminal offense has occurred or suggest falsely that someone has engaged in sexual misconduct. False defamatory statements of this type are given a presumption of harm in Michigan and would then lead promptly to a right to recover damages.
The second category is essentially all other harms. If the harm that you suffered from the defamation does not involve a false statement of a criminal offense or sexual misconduct, then your case will require proofs and evidence sufficient to convince the court to establish that you have suffered a harm and are entitled to damages. These second category cases can be more difficult to prove and require extensive discovery.
Likewise, there are many defenses to a defamation claim that can prevent a recovery. The Court will not look at a statement in isolation or focus on a single word or sentence. Instead, the statement will be analyzed for its totality. Additionally, privileged statements are permitted to be made. “The elements of a qualified privilege are (1) good faith, (2) an interest to be upheld, (3) a statement limited in its scope to this purpose, (4) a proper occasion, and (5) publication in a proper manner and to proper parties only.” Prysak v R L Polk Co, 193 Mich App 1, 15 (1992). Michigan law also recognizes a judicial immunity privilege. “The immunity extends to every step in the legal proceeding and covers anything that may be said in relation to the matter at issue, including pleadings and affidavits.” Lawrence v Burdi, 314 Mich App 203, 217 (2016). The privilege should be construed liberally to maximize attorneys’ freedom of expression in pursuit of their clients’ cases, and its reach only stops at statements unrelated to or having no bearing upon an issue or subject matter before the court. Oesterle v Wallace, 272 Mich App 260, 264-265 (2006).
Michigan also offers additional causes of action that can work in tandem with a defamation claim, or perhaps as an alternative when a defamation claim cannot be supported. One of these is known as Intentional infliction of emotional distress. This requires proof that “(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress.” Hayley v Allstate Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004). It is an initial question of law for the courts to determine whether a defendant’s alleged misconduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 582; 603 NW2d 816 (1999).
An additional cause of action is known as Invasion of Privacy or putting someone in a false light. “In order to maintain an action for false-light invasion of privacy, a plaintiff must show that the defendant broadcast to the public in general, or to a large number of people, information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position.” Duran v Detroit News, Inc, 200 Mich App 622, 631-632; 504 NW2d 715 (1993). Further, “the defendant must have known of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” Puetz v Spectrum Health Hospitals, 324 Mich App 51, 69; 919 NW2d 439 (2018).
If you have been defamed, or you are being accused of defamation, we are available to help you understand your rights and obligations.
N.B. Not Legal Advice: Please contact us if you would like to discuss the facts and circumstances of your specific matter. Simon PLC Attorneys & Counselors expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this memorandum. The information contained herein may not reflect current legal developments and is provided without any knowledge as to the recipient’s location, industry, identity or specific circumstances. No recipients of this content, clients or otherwise, should act, or refrain from acting, on the basis of any content included in this memorandum without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the jurisdiction for which the recipient’s legal issue(s) involve. The application and impact of relevant laws varies from jurisdiction to jurisdiction, and our attorneys do not seek to practice law in states, territories and foreign countries where they are not properly authorized to do so.
