Dougherty, Molenda, Solfest, Hills & Bauer P.A.

Understanding Defamation Per Se

In general, Minnesota law provides a remedy to those who have been defamed. Defamation consists of (1) a statement of fact that tends to injure one's reputation; (2) which is communicated to another; and (3) that the speaker knew or should have known to be false.

Defamation Per Se

Certain categories of defamatory statements are considered so naturally harmful to reputation that damages are presumed if the statements are made. This is referred to as "defamation per se." This concept applies, for example, where a false statement claims that a person has committed a crime or falsely identifies a person as a criminal. Other statements that fall within this extreme category of defamation are statements that a person has a sexually transmitted disease or that a person engaged in improper or incompetent conduct in the person's trade or business.

Minnesota Law

The Minnesota Court of Appeals explained the operative rule as follows:

"[D]efamatory per se defines a rule of damages, not of defamatory meaning." Schlieman v. Gannett Minn. Broad., Inc., 637 N.W.2d 297, 307 (Minn. App. 2001). Statements are defamatory per se if they falsely accuse a person of a crime, of having a loathsome disease, or of unchastity, or if they refer to improper or incompetent conduct involving a person's business, trade, or profession. Anderson v. Kammeier, 262 N.W.2d 366, 372 (Minn.1977); Restatement (Second) of Torts § 570 (1977). With regard to false accusations of a crime, "the words need not carry upon their face a direct imputation of crime." Larson v. R.B. Wrigley Co., 235 N.W. 393, 394 (Minn. 1931). "It is sufficient if the words spoken, in their ordinary acceptance, would naturally and presumably be understood, in the connection and under the circumstances in which they are used, to impute a charge of crime." Id.

Longbehn v. Schoenrock, 727 N.W.2d 153, 158-59 (Minn. App. 2007).

In cases involving defamation per se, a victim is not required to prove actual harm to reputation. Rather, harm to reputation is one of four elements of damages, which may or may not be part of the damage award. Specifically, where defamation per se is proven, a jury must decide the amount of money a plaintiff is entited to receive for "general damages" in the following categories: 1) Harm to reputation and standing in the community; 2) mental distress; 3) humiliation; and 4) Embarrassment. No evidence of actual harm is required. CIV JIG 50.50 (Presumed Damages); Longbehn v. Schoenrock, 727 N.W.2d 153, 161 (Minn. Ct. App. 2007) (holding that where a statement is defamatory per se, general damages are presumed and a plaintiff may recover without any proof of actual harm) (citation omitted).

In other words, where a statement is defamatory per se in Minnesota, a plaintiff need not prove that any person thinks less of him or her (general damages for harm to reputation), or that the plaintiff lost a job (special damages for lost wages), or that the plaintiff lost a contract (special damages for lost profits).

 

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