Defamation and False Light

Defamation of Character

Defamation and False LightLies and misleading statements about you can be damaging to both your reputation and your career. Among other things, they can make it much more difficult for you to advance at your job or to find another job. Perhaps worse yet, in New York and New Jersey defamation of character can lead to you getting suspended, fired or disciplined at your current job.

Both New Jersey and New York law recognize defamation claims. Defamation occurs when someone makes a false statement of fact to someone else that causes you harm. For example, you could have a claim if you are damaged by a coworker who falsely tells your supervisor that you stole from the company if it causes you to get disciplined or fired.

Unlike most other employment law claims, defamation claims typically are against the individual who made the false statement about you, rather than against your employer. However, it is possible you could have a claim against your employer if the company (or government entity) you work for made the false statement, such as if it was part of an official announcement or statement published by the company.

Since defamatory statements have to be false statements of fact, neither an opinion nor a true statement can be the basis for this claim. However, depending on the circumstances, you might have another claim such as “False Light” (discussed below) or retaliation.

Proving defamation is harder than proving most civil claims. Among other things, you have to prove it by “clear and convincing evidence,” rather than by a “preponderance of the evidence.”

Negative Job References

One common form of defamation in the context of the workplace is when a former employer provides a false and negative job reference when you are looking for a new job. While the law provides some degree of protection to employers when they provide job references (a “qualified privilege”), in general someone cannot make a false statement of fact about you to a prospective employer if he or she either knows the statement is false, or acts with reckless disregard as to whether it is true.

Libel and Slander

Defamation falls into two categories: Libel and slander. Libel occurs when the false statement is made in writing, such as in a newspaper, on a website or in an email. In contrast, slander is when the statement is made verbally.

False Light Claims

Both New Jersey and New York recognize another claim called “false light.” A false light claim occurs when someone says something to someone else that is either false or has the potential to portray you in a false light about something that would be highly offensive to a reasonable person.

Example: Your employer is investigating a theft that you obviously did not commit. If someone falsely states that you are the thief that could give rise to a defamation claim.

If, however, instead someone hangs a picture of you throughout the office with the caption saying: “If you know anything about the recent theft, please call the human resources department,” the sign would not be defamatory since it does not contain a statement of fact. However, it pretty clearly implies that you are a thief, an accusation that presumably would be highly offensive to a reasonable person. Accordingly, the sign could give rise to a false light claim.