The Truth about Defamation
You work hard, you build a rapport with your client, you’re all vibing well, then, surprisingly, your client decides they don’t look the way they look in their photos. Or the $75 bouquet they ordered isn’t a $125 bouquet like they though it would be. For whatever reason, your client’s expectations were different than the reality and now you are on the bottom end of a bad review.
You know the facts and you think they are lying. What can you do? Many people go straight to defamation, but it’s less of a viable source than you may think.
Defamation is a statement that injures another person’s reputation. In order to prove defamation on its face, you must show all of the following: 1) the statement was false; 2) that the statement was made of a matter of fact; 3) the statement was clearly about you; 4) the person was at least negligent in making the claim; 5) the statement was communicated to another person; and 6) that the statement has a natural tendency to injure or cause “special harm”.
First, let me point out the obvious, there is an absolute defense if the statement is true. So if you were an hour late and lost half the photos, you are out of luck and should be finding other ways to reconcile with your client.
Proving defamation on a review site can be hard if the review is clearly an opinion. If a client is making false statements that sound more like fact (example: he and his team use consumer grade equipment and didn’t know how to operate the flashes) you are closer to a claim, but remember, you’ll need to prove all of the elements listed.
The last element of damages falls into two categories, defamation “per se” and defamation “per quod”. Defamation per se (latin for “of itself”) consists of anything that is damaging on its face without further explanation, usually when one person accuses another person of a crime or unfit to practice that person’s trade, business or profession. Defamation per quod is everything else that’s not per se.
In a successful defamation case, the injured party may be awarded any three types of damages. General damages, which are damages for loss of reputation, shame, and hurt feeling; Special damages, which are provable damages like loss of business; and Punitive damages, which are damages awarded by the discretion of the court or jury in addition to general and special damages as a way of punishment.
With few exceptions for strong cases, a defamation lawsuit probably isn’t the most viable course of action for small business owners with all the costs and time involved. Instead, you can flex those customer relations muscles and reach out to try to find a way to satisfy the client if you did do work that was subpar (a makeup session or refund). Or if there’s a pending lawsuit, you can make removing the review part of the settlement, if there is a settlement.
Just a final note about if you decide to defend yourself online, just be careful not to fuel the flame. Remember some people live for the drama and you don’t want to give them more to argue about.
Desiree Nguyen Orth is a California licensed attorney and photographer who owns Desiree Nguyen Legal. Desiree Nguyen Legal is a modern law firm for creative small business owners using a holistic approach to legal protections and damage prevention. The information provided is for educational use only and does not constitute legal advice or solicitation. No attorney-client relationship is formed by commenting or submitting anything on this site. Please contact Desiree Nguyen Orth or an attorney barred in your state for individual legal attention.