For plaintiffs, defamation cases are often an uphill battle to prove and win. For defendants, they can be a slam dunk or a fact-intensive battle over defamation defenses. But knowing the hurdles, and how to avoid them, can improve your chances on either side.
1. Retraction Demand Letter
Failure to send a retraction demand letter prior to filing suit can significantly limit a plaintiff’s damages. Michigan law makes exemplary damages available only if the plaintiff demands a retraction and gives the defendant a reasonable time to retract. MCL 600.2911(2)(b). The amount of time considered “reasonable” is a question of fact. Hope-Jackson v. Washington, 311 Mich App 602, 629; 877 NW2d 736 (2015).
Generally, a retraction must be published or communicated in “substantially the same manner” as the original statement. MCL 600.2911(2)(b). While issuing such a retraction does not preclude an award of exemplary damages, it can reduce a plaintiff’s damages as evidence of mitigation. See Peisner v. Detroit Free Press, Inc, 421 Mich 125, 130; 364 NW2d 600 (1984) (a published retraction is admissible on question of defendant’s good faith and in reducing damages).
2. One Year Statute of Limitations
Watching the clock is particularly important in defamation cases. That’s because defamation cases are the only civil actions in Michigan with a one-year statute of limitations. MCL 600.5805(11). Generally, the statute begins to run when a defamatory statement is “published,” meaning the date the statement was communicated to a third party. Even if the person defamed had no knowledge of the statement at the time of publication, the statute still begins to run at publication. Grist v. Upjohn Co, 1 Mich App 72, 81; 134 NW2d 358 (1965).
Importantly, each “publication” constitutes a separate cause of action. Id. For example, two statements made on different dates — even if they concern the same topic — are two separate causes of action for purposes of the one-year statute of limitations. Therefore, joining separate acts in the same pleading only works if each act is distinctly within the statute of limitations.
3. Claims Based on Statements Made in a Police Report
Statements made in a police report are absolutely privileged in defamation cases, meaning plaintiffs can’t use such statements as the basis of a defamation claim no matter how malicious they may be. Michigan courts have consistently held that even if police reports contain information that are completely untrue or are written with reckless disregard for the truth, the statements are subject to the absolute privilege. See Eddington v. Torrez, 311 Mich App 198, 199; 874 NW2d 394 (2015) (gasoline company’s report to police that a suspect stole gas on four occasions was subject to an absolute privilege). In fact, the privilege even attaches if a person makes the report with malicious intent. See, e.g., Simpson v. Burton, 328 Mich 557, 562; 44 NW2d 178 (1950).
The purpose of this privilege is to encourage crime victims or those with knowledge of crimes to freely report what they know about suspected crimes without facing the risk of a defamation suit. Eddington, 311 Mich App at 202.
4. Assuming the Defamation is “Per Se”
Typically, a plaintiff must prove they were injured; however, in defamation per se cases, the plaintiff’s injury is presumed. Michigan recognizes defamation per se only where the defamatory statement (1) imputes a criminal offense or (2) implicates a lack of chastity. See, e.g., Lawrence v. Burdi, 314 Mich App 203, 216–17; 886 NW2d 748 (2016) (requests for admission that a plaintiff had prior drug convictions was defamatory per se); Linebaugh v. Sheraton Michigan Corp, 198 Mich App 335, 337–39; 497 NW2d 585 (1993) (cartoon depicting plaintiff and co-worker in sexually compromising position was actionable per se).
However, not every false accusation of a crime constitutes defamation per se. For instance, accusing someone of battery is not defamation per se because it is not a crime of “moral turpitude,” nor does it subject a plaintiff to “infamous punishment.” Lakin v. Rund, 318 Mich App 127, 130; 896 NW2d 76 (2016) (holding that an “infamous” crime is a felony punishable by a prison sentence, while misdemeanors punishable by a prison sentence of one year or less are not “infamous” crimes).
Furthermore, unlike some states, Michigan does not recognize defamation per se for false and defamatory statements made about a business. A recent Court of Appeals case clarified that unless a defamatory statement accuses the business of committing a criminal offense, only actual damages are recoverable. Cetera v Mileto, No 356868, ___ Mich App ___, ___ NW2d ___ (July 28, 2022). The court reasoned that the plain meaning of MCL 600.2911(1) limits defamation per se actions to cases involving accusations of criminal conduct or a lack of chastity. Id.
5. Assuming a Statement is False When It’s Merely a Rhetorical Hyperbole
Even statements that can be objectively proven false may be protected where they cannot “reasonably be interpreted as stating actual facts.” Milkovich v. Lorain Journal Co, 497 US 1, 2; 110 S Ct 2695; 111 L Ed 2d 1 (1990). This is often a fact-based inquiry that looks to the greater context of the words and their meaning. For example, a newspaper’s description of a real estate developer’s negotiation position as “blackmail” is nothing more than rhetorical hyperbole, even though blackmail can be a criminal offense. Greenbelt Co-op Pub Ass'n v. Bresler, 398 US 6, 14; 90 S Ct 1537; 26 L Ed 2d 6 (1970). Michigan courts similarly acknowledge that terms such as “blackmailer,” “traitor,” “crook,” “steal,” and “criminal activities” must be read in their full context to determine whether they are mere exaggerations. Ghanam v. Does, 303 Mich App 522, 546; 845 NW2d 128 (2014). See also Hodgins v. Times Herald Co, 169 Mich App 245, 254; 425 NW2d 522 (1988) (exaggerated language is not actionable merely because it can be taken out of context as accusing someone of committing a criminal act).
In another example, the Michigan Court of Appeals found that a statement that a mother “never” spent time with her daughter amounted to rhetorical hyperbole. Ireland v. Edwards, 230 Mich App 607, 618–19; 584 NW2d 632 (1998). Even though the statement was patently false when taken literally, the court determined that any reasonable person hearing the remarks would have understood the intent. Id. at 619.
6. Assuming a Statement is an Opinion Because It’s Phrased as One
Just because a statement is an opinion, does not mean it is totally immune from a defamation suit. Courts often look to the greater context of the opinion to determine whether a reasonable reader or listener could understand it as an assertion of fact. For example, there are key differences between “I think Jane is annoying” and “I think Jane murdered the man.” The first statement is an opinion that cannot necessarily be verified as true or false. The second statement is still an opinion; however, if untrue, it can also be defamatory.
Practitioners should also be on the lookout for statements that are merely couched as an opinion. The United States Supreme Court has warned that merely couching a statement as an opinion — such as “in my opinion, Jane murdered the man,” does not dispel the factual implications contained in that statement. Milkovich, 497 US at 19. The Court holds that there is no separate constitutional privilege for statements of opinion. Id. at 21.
Warner’s Privacy, Defamation, Media and First Amendment Litigation attorneys regularly assist clients in filing and defending defamation suits. If we can be of assistance to you or your business, please contact us.
This article was originally published in the Macomb County Bar Association Bar Briefs May 2023 issue. To read the full Bar Briefs newsletter, please click here. Scroll to page 12 in the PDF to read this article.