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The Privilege To Defame: Why You Can't Always Sue Someone For Lying About You

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Having someone tell a lie about you is infuriating and frustrating - but can you do anything about it? As difficult as it may be to accept, there are times when someone can tell a lie - even for the express purpose of causing you a problem - and get away with it. Most likely, you'll encounter a situation like this if you're involved in a contentious court case, such as a child custody battle.  Here's what you should know.

Whether It's Slander Or Libel, It's All Defamation

When a lie is written down and published (including on a social media website), it's "libel." When the lie is spoken, it's "slander." However, both types of lies are considered "defamation" if they are damaging to you in some way.

In order to prove defamation, you have to establish at least four things:

  1. The lie was communicated to someone else, either verbally or in written form.
  2. The lie was harmful to your reputation (defamatory).
  3. The lie was directed at you.
  4. The lie was "unprivileged."

How Can A Lie Be Privileged?

Many people have a hard time understanding the idea that a false statement can be "privileged." What this means is that the individual is afforded a privilege to say what he or she says - even if it is untrue - in certain settings. 

Because our court system relies on the ability of people to give testimony without fear of reprisal, you usually cannot sue someone for what was said in court, or to anyone else directly involved in the litigation. Essentially, the court takes the position that statements made during the course of any litigation and testimony are made in good faith - with the speaker actually believing what he or she is saying.

For example, your ex-spouse could make allegations that you are abusive or neglectful of your children and shouldn't have shared custody. He or she tells this to the judge and asks that your custody agreement be changed because of it. He or she may even make lurid or incredibly damaging statements about you as part of his or her testimony.

In this case, whatever your ex-spouse says about your conduct with your children is considered "privileged," when he or she says it in the course of any hearing or investigation by the court. He or she may repeat the allegations to the judge, the children's Guardian ad Litem, the children's psychologist, and so on.

As frustrating as this may be for you, you can't sue your spouse for defamation. Instead, you have to rely on the fact that your ex-spouse will be unable to provide sufficient evidence to the court to back up what's being alleged. You're also given the opportunity to introduce evidence that disproves the allegations. 

Privilege Has Its Limits

On the other hand, if your ex-spouse prints up flyers with the allegations of abuse and neglect on them, and passes them out in your neighborhood, or to the parents of all your children's friends, you may very well have an actionable case. Your ex-spouse has now included people who are removed from the litigation and court and his or her statements may no longer retain their privilege. 

You may also be able to prove that your ex-spouse knew his or her allegations were false, but snatched at an opportunity to make trouble for you. For example, your child could have fallen from a swing on the school playground and suffered a split lip. The school could have informed your ex-spouse of the accident. If your ex-spouse conceals his or her knowledge of the accident and instead claims that you beat your child, you may be able to show that your spouse's statements were all made in bad faith.

If you're involved in a dispute with someone and he or she begins spreading lies about you that are harmful or malicious in nature, discuss the issue with an attorney like Lerner, Piermont & Riverol, P.A. Don't assume that you're without recourse, because you may be able to pursue a claim for defamation, depending on the situation.