What Are Presumed Damages: A Closer Look in 2024

Presumed damages are a type of legal remedy awarded in defamation cases without requiring proof of actual harm. The law assumes that the defamatory statement has caused harm to the plaintiff’s reputation or other interests.

Key Considerations for Presumed Damages:

  • Defamation Per Se: Presumed damages are typically available only for defamation per se, which involves statements so harmful that damage is presumed, such as accusations of serious crimes or professional misconduct.
  • Slander and Defamation Per Quod: Presumed damages are generally not available for slander (spoken defamation) or defamation per quod (defamation that requires additional context to be harmful).
  • First Amendment Limitations: The First Amendment can limit the availability of presumed damages in cases involving public figures or matters of public concern.

Factors Affecting the Amount of Presumed Damages:

The amount of presumed damages awarded can vary widely and depends on several factors, including:

  • Severity of the Defamation: More serious defamatory statements may result in higher damages.
  • Plaintiff’s Reputation: The plaintiff’s standing in the community can influence the damages awarded.
  • Defendant’s Malice: If the defendant acted with malice, the damages may be higher.

It’s important to note that while presumed damages can be significant, they are subject to various legal limitations and can vary depending on the specific circumstances of the case.

Presumed Damages In Different States

Some states such as Missouri no longer have defamation per se categories and require proving actual or special damages in order to recovery in a claim for defamation.  California and many states continue to recognize all four traditional defamation per se categories of defamation under which damages may be presumed, though some states further restrict damages so “nominal” damages if actual or special monetary damages cannot be proven.  Other states take a middle ground approach and adopt some but not all traditional defamation per se categories such as Michigan which recognizes lack of chastity or false claims of criminal conduct as defamation per se claims but importantly not claims relating to business reputation which in Michigan requires proof of actual or special damages.

If you file your defamation claim you need to be aware that unless it fits into a defamation per se category that merely alleging false and defamatory statements is not enough, and that you will need to plead and prove actual damages to sustain you defamation claim which in many instances is not an easy task.

A thorough review of your defamation claim is advised before investing the significant funds required to engage in a lawsuit to insure that you will be able to prove the damages necessary to succeed in your defamation case.

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