In New York, to win a defamation lawsuit, the plaintiff (the person who is suing for defamation) must prove the following elements:
- Defamatory statement: The plaintiff must show that the defendant (the person being sued) made a false and defamatory statement about them.
- Publication: The plaintiff must prove that the defamatory statement was communicated to at least one other person, other than themselves.
- Identification: The plaintiff must prove that the defamatory statement was about them, or that the statement would lead a reasonable person to believe that it was about them.
- Falsity: The plaintiff must prove that the defamatory statement is false. In some cases, the defendant may argue that the statement was merely an opinion, rather than a statement of fact. In those cases, the plaintiff may have to prove that the statement was presented as a statement of fact, rather than an opinion.
- Fault: Depending on whether the plaintiff is a public or private figure, they must prove that the defendant acted with either actual malice or negligence in making the defamatory statement.
If the plaintiff can prove all of these elements, they may be awarded damages in a defamation lawsuit. The damages may include compensation for harm to reputation, emotional distress, and any other losses caused by the defamatory statement.
Please note, in most claims for defamation if you cannot prove your damages you will not succeed on your claim and the 1st Amendment provides some pretty broad protections against defamation lawsuits. In addition, if you’re trying to file a preliminary injunction to get a temporary restraining order against someone with respect to their communications, you’re going to have a very difficult time succeeding in most courts as Judges are not very keen on gag orders because of the broad rights set forth in the 1st Amendment.
