In Wisconsin, a claim for defamation may exist when a person makes a false statement of “fact” to a third person, causing harm to the reputation of the person about whom the statement was made. The tort of defamation can arise from either common law or by statute (Wis. Stat. § 942.01).
The above definition consists of three elements. The first is that the statement must be false. Truth, of course, is an absolute and complete defense to a defamation claim. Furthermore, the false statement must not simply be a statement of opinion. Essentially, to determine if the potentially defamatory statement is really just a harsh opinion, one must look to whether the statement has the potential to be proven as true or false.
The second element is that the statement must be communicated to a person other than the person defamed. This is known as the publication element. The statement can be written (better known as libel), or it can be made orally (slander). The publication need not be “published” in the traditional sense; it just needs to have either been spoken aloud or made visible for others to see.
The final element of defamation is that the statement must tend to harm the reputation of the person as to lower him in the opinion of the community or to deter others from associating or dealing with him. A false statement that does virtually no harm has no teeth in a defamation action. That being said, Wisconsin recognizes claims of defamation per se. These claims relate to certain types of statement that are considered so inherently defamatory that a defamation plaintiff need not prove damages. The most common types of defamatory statements per se involve statements relating to a criminal offense, a loathsome disease, unchastity, and statements regarding the plaintiff is his business or profession.
Of course, there are also a number of defenses and privileges that will defeat an otherwise valid defamation claim. As mentioned above, truth is an absolute defense. Even if a statement is only “substantially” true, the defamation claim can be defeated. Statutory privilege is another defense. These are privileges codified by state or federal statute. Some examples involve the true and fair reporting by newspapers (895.05(1)) and the good faith participation in the review or evaluation of the services of health care providers (146.36(1g)).
The most powerful defense to a defamation claim relates to the doctrine of absolute privilege. Wisconsin legal cases have recognized absolute privileges protecting participants in judicial and quasi-judicial proceedings, statements made to a grand jury or district attorney, and statements made by high-ranking executive government officials in carrying out their duties.
Qualified privilege is another defense. This defense may be invoked when the speaker had a duty to communicate or publish a statement to further moral, social, or legal policy, and also requires the audience to have a reciprocal interest in having the statements communicated to them. This defense can be thwarted when the plaintiff shows that the defendant abused the privilege by making the statement with reckless disregard for its truth or by mixing unprivileged statements with privileged ones. In Wisconsin, the burden is on the defendant to show the communication was privileged, and then upon the plaintiff to prove abuse. Qualified privilege has been found to exist in statements of law enforcement, statements of an ex-employer to a prospective employer, credit bureau reports, and statements at a city council meeting.
If you believe that you have been the victim of defamation, our attorneys at Levine Eisberner LLC may be able to help. Call us for a free consultation.