I am asked very often whether there is a lawsuit remedy for people posting things on Facebook and Instagram that is defamatory. Here is the low-down on the law in Maryland about defamation:
In Maryland, defamation of character falls into two categories: libel and slander. Libel is a written, including signs or pictures, defamation. Slander is oral, involves speech. “A statement that is merely unflattering, annoying, embarrassing, or that hurts only the plaintiff’s feeling is not considered defamatory.” R. Sack, Libel, Slander and Related Problems 45 (1980).
These are the elements necessary for a plaintiff to prove a case of defamation in Maryland:
“(1) that the defendant made a defamatory statement to a third person, (2) that the statement was false, (3) that the defendant was legally at fault in making the statement, and (4) that the plaintiff thereby suffered harm. A defamatory statement is one ‘which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.’” Offen v. Brenner, 402 Md. 191, 935 A.2d 719 (2007), quoting Smith v. Danielczyk, 400 Md. 98, 115, 928 A.2d 795, 805 (2007).
Defamatory Statements
Maryland recognizes the distinction between defamation per se and defamation per quod. “In the case of words or conduct actionable per se, their injurious character is a self-evident fact of common knowledge of which the court takes judicial notice and need not be pleaded or proved. In the case of words or conduct actionable only per quod, the injurious effect must be established by allegations and proof of special damage and in such cases it is not only necessary to plead and show that the words or actions were defamatory, but it must also appear that such words or conduct caused actual damage.” M & S Furniture v. De Bartolo Corp., 249 Md. 540, 544, 241 A.2d 126, 128 (1968). A statement which falsely charges a person with the commission of a crime is defamatory per se (A. S. Abell Co. v. Barnes, 258 Md. 56 (1970); as is a statement of unchastity or immorality, particularly against a woman. In defamation per se cases, the plaintiff does not have to prove actual damage in order to successfully litigate his or her case because the defamatory statements are enough to bring ruin to his or her reputation.
Truth
The truth of a statement is a complete defense to a libel action. True statements, no matter how damaging to the plaintiff, may never provide the foundation for a defamation claim.
Fault
In determining fault in a matter of defamation, private persons only have to prove that the person defaming them was negligent, failing to act with due care considering the circumstances.
Damages
If the defamatory words are actionable per se, the law implies or presumes general damages, but if the words are actionable per quod, the plaintiff has the burden of proving special damages.
- compensatory damages are the immediate and necessary consequence of the defamatory statement, the injured party may recover only as much as will fairly compensate for the injury sustained; compensatory damages may be either general or special damages;
- punitive damages
- other damages awarded by the court