You are standing in the line of a supermarket. As the queue tests your patience, you take a brief glance towards the tabloids and a certain headline captures your attention. It appears that there was a recent assassination attempt on the life of your prominent state senator. What’s more, the dubious article mentions you, specifically, by name, helpfully accompanied by one of your recent photos, and paints you as the perpetrator. You rapidly go through the week’s activities in your mind, none of which involve attempting to murder a high-profile politician. You thus do what any reasonable person would do in such an unreasonable situation: you lawyer up.
As outlandish as this scenario may seem, a similar incident recently occurred with famed videogame developer and director, Hideo Kojima. On July 8, 2022, Shinzo Abe, the former Prime Minister of Japan, was assassinated in the city of Nara in Japan. The murderer was immediately apprehended and detained. However, shortly thereafter, a Greek news station, an Iranian news outlet, and a French politician posted stories of the incident, but, oddly, accompanied their postings with images of Kojima, implicating him as the perpetrator. The different outlets all deleted or modified their postings after realizing the error, but not before Kojima, rightfully, threatened a libel lawsuit.
Libel is a written form of defamation that differs from its sister tort, slander, which is an oral form of defamation. In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.
Texas happens to be one of few states that has laws that consider certain types of statements to be defamatory per se, meaning that they are automatically considered defamatory by law. Defamatory per se statements include statements that exhibit that the plaintiff (1) is incompetent in his job, trade, or profession; (2) has an infectious or serious disease; or (3) has committed a serious or notorious crime. In Kojima’s situation, he would more than likely fall under the third category of defamatory per se statements, given that the news outlets claimed that he had committed murder. However, most individuals, would more than likely find themselves in the first category.
Nonetheless, it is worth noting that libelous statements are statements of fact, not opinion. Suppose that an employer, on public record, claims that X is a bad employee. If X had an employment record of numerous complaints, write ups, follies, etc., then a reasonable person would consider X to be a bad employee, thus making the statement by the employer true and not defamatory. However, if X had a pristine record, high marks, and numerous accolades, then the employer’s statement could be considered defamatory given that no reasonable person would consider X to be a bad employee.
On the other hand, suppose the employer claims that she believes that Employee Y, a model employee, could use work in her social skills when it comes to handling clients. Even if Y had a pristine record, this statement would more than likely not be considered defamatory given that the employer’s statement seems to be constructive and not necessarily based on fact; it is suggestive rather than factual.
Realistically, most of us (one would hope) will not be falsely and baselessly implicated in the murder of a high-profile figure. However, that does not suggest that some of us will not be faced with false statements that affect our reputation and future prospects. If you find yourself in such a situation, then it would be prudent to consult with an attorney and see what, if any, options you may have.