Thanks to the Internet, defamation is on the rise — for communicate ease also means an increase in knee-jerk lie-telling and aggressive marketing tactics, which sometimes cross the online libel line.

The thing with defamation, though, is that many people don’t understand how courts view the statute. It’s not just a matter of whether or not a statement is scandalous or hurts someone’s feelings. In order for a statement to be defamatory, it must be a false statement of fact that was either maliciously or negligently communicated to a group of people and ended up causing the subject material harm. Intentional infliction of emotional distress also isn’t about hurt feelings, per se, but does inherently involve more judicial subjectivity than defamation. It’s not just a matter of whether or not a statement is scandalous or hurts someone’s feelings. In order for a statement to be defamatory, it must be a false statement of fact.

What is Defamation?

Defamation does not amount to hurt feelings. In order for a statement to be deemed defamatory in the eyes of the court, it must be:

1. A false statement of fact, that was
2. Publicized to more than one other individual, and
3. Was made public in a negligent manner, which ultimately
4. Caused the plaintiff material harm.

In addition to the four pillars of defamation, slander and libel cases also turn on whether or not the plaintiff is a private or public figure. Under United States defamation law, public figures must meet a higher standard of actual malice to win a defamation action. On the flip side, private parties, in most jurisdictions, only need to prove that the defendant acted with negligent regard for the truth. Under United States defamation law, public figures must meet the higher standard of actual malice to win a defamation suit.

So who decides if an individual or entity is a private or public figure? Federal and state laws provide roadmaps to a plaintiff’s status in a given jurisdiction. As always, the presiding judge’s legal interpretation will also weigh heavily in determining a plaintiff’s societal standing.

What is Intentional Infliction of Emotional Distress?

Intentional infliction of emotional distress is different from defamation. Traditionally called the “tort of outrage”, emotional distress claims are intended to make up for shortcomings in the assault tort, which doesn’t protect potential victims from non-immediate threats of battery.

The four components of intentional infliction of emotional distress claims:

1. The plaintiff must prove the defendant purposefully committed a reckless act;
2. The act in question must be of an “extreme and outrageous” nature. Literally, it must be something that would cause the average person to exclaim, “Outrageous!” upon learning of the situation. When determining whether a given act qualifies as “extreme or outrageous,” a judge or jury will consider:
   • Patterns of conduct;
   • Vulnerability of the plaintiff;
   • If the defendant used any racial, religious, sexist, homophobic or ageist epithets; and
   • The existing relationship between the plaintiff and defendant.
3. The actions under review must have caused the plaintiff emotional distress; and
4. The emotional distress experienced by the claimant be severe by evidence of:
   • Lack of productivity; or
   • Confirmation of a mental disorder by a medical professional;
   • Sometimes accounts from acquaintances familiar with the situation suffice, but it’s rare.

Traditionally called the “tort of outrage”, emotional distress claims are intended to make up for shortcomings in the assault tort, which doesn’t protect potential victims from non-immediate threats of battery.

Negligent infliction of emotional distress is another option available to injured parties. Unlike Intentional infliction, negligent infliction does not require the plaintiff to prove malice.  As such, the penalties aren’t as steep as IIED punishments.

Still unsure if you want to address a legal matter as a defamation or emotional distress case? Contact the team at Kelly Warner. All consultations are 100% confidential. We’ll steer you in the best, most cost-effective direction based on the facts of your case.