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10 Things to Know About New Hampshire Defamation Law

New Hampshire defamation law can often be a confusing area to learn about and understand.  People say and write things about other people and topics on a daily basis without so much as thinking about the consequences of stating something that is false.  Despite the rapid flow of information online and in social media, people should often pause and reflect on what they intend to say or publish online to ensure it is fact-based or a true opinion.  To that end, the following list identifies and explains 10 things to know about defamation law in New Hampshire (and elsewhere).

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10 Things to Know About New Hampshire Defamation Law

1) What is Defamation?

The term “defamation” refers to any statement that hurts someone’s reputation.  If the statement is in writing, it is known as “libel.”  Statements made on social media fall within this category.  If the statement is spoken, it is known as “slander.”  Defamation is considered a tort, which is a civil wrong.  A person about whom a defamatory statement is made may sue the person who made the statement.

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2) How do you prove defamation?

To prove defamation, you must demonstrate the following elements: (a) a statement was made; (b) the statement was false; (c) the statement was published to a third party; (d) the statement caused you to suffer damages; and (e) there is no privilege that excuses you from the defamation.

Let’s look at each of these elements in more detail.

3) Statement

It goes without saying that there must be an actual statement that was spoken or written, or otherwise communicated in some way.

4) Falsity

The statement must be false.  A true statement — no matter how mean or harmful it may be — is not defamation.  An opinion — no matter how insulting it may be — is also not defamation.  Opinions concern the subjective beliefs of the person or persons who made them.

However, simply placing the words “I think” or “It’s my opinion that . . . ” in front of a statement that would otherwise be considered a statement of fact does not transform that statement into an opinion.  If a reasonable person would view the statement as a statement of fact, then it is not an opinion.  For example, a reasonable person could view the statement “I think Pollo Loco Restaurant has a salmonella problem” as an actual statement of fact.  People should be careful how they phrase their “opinions.”

5) Publication

The statement must have been published — or seen, heard, or read by — a third party.  A third party is someone other than the person making the statement or the subject of the statement.  “Publication” does not mean the statement must have been printed in a newspaper or book.  Rather, the statement need only have been made to a third person.

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6) Damages

Traditionally, to prevail on a defamation claim, a person must show he or she suffered harm as a result of the statement: for example, some tangible economic loss (such as losing a job) as a result of the statement.  These types of damages are known as “special” damages.  They must be proven specifically.

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In some states like New Hampshire, however, a person can assert a claim for defamation per se.  Unlike a traditional defamation claim, which requires proof of special damages (see above), when evaluating a claim for defamation per se, a jury can merely presume damages exist and award general damages, which refer, among other things, to harm to reputation, public humiliation, emotional distress, and the kind of impact such a statement would have in a small community.

7) What is Defamation Per Se?

Under New Hampshire law, several categories of statements are considered defamation per se, including a statement that someone has a loathsome disease, a statement that someone committed a crime, and a statement that injures someone’s trade, business, or profession.  If a statement falls within one of these categories, a person does not need to prove damages specifically and can, instead, permit a jury to presume damages exist and allege that they occurred generally (see above)

Fojo Law was recently involved in a case in which a New Hampshire Superior Court judge ruled that a statement made on Facebook by a Bedford, NH resident about a landscaping company was not defamation per se.  That ruling was legally incorrect, and Fojo Law is appealing it to the New Hampshire Supreme Court.

8) Privilege

In certain instances, a statement is considered privileged, and a person cannot maintain a lawsuit based on such a statement.  For example, a statement made in litigation — a statement in a complaint or testimony by a witness at trial — is not considered defamation, even if it is false and injures someone.

9) Public figures face a higher burden in proving defamation

People are allowed to speak their minds about public officials.  The latter group enjoys less protection from defamatory statements and faces a higher burden when attempting to prove defamation.

First, the statement must have been made about something that relates to the official’s behavior in public office.

Second, the official must prove — in addition to all the elements above — that the statement was made with “actual malice.”  “Actual malice” means the statement was not an honest mistake and was, in fact, made with the actual intent to harm a public official.  Actual malice occurs when the person making the statement knew the statement was not true when he or she made it, or had reckless disregard for whether it was true or not.

10) Altered photos can be considered defamation

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An altered or modified photo that scandalizes a person or a business can be considered defamation.  Often, these types of photos are posted on social media and go “viral.”  People should be careful about posting such photos.  Photos that are overly absurd or that appear to have clearly been modified will likely not be considered defamatory.  The less obvious the modification, however, the more likely the photo will be considered defamatory.

Defamation law in New Hampshire and elsewhere is a rapidly evolving area of the law, in particular because of social media and the speed with which information posted online is disseminated to third parties.  People should be careful what they post online and ensure that any information they post is accurate.