Slander by a client – and what you can do!

Slander is the action or crime of making a false spoken statement damaging to a person’s reputation.

Strictly speaking, unless a statement is spoken, then such false statements – say a social media post, or a tweet or a website review — are defamation.

Defamation is the communication of a false statement that harms the reputation of an individual, business, or product.

Both slander and libel, as forms of defamation go beyond a negative review – especially a factual negative review. This is about damaging one’s reputation.

It must be a false statement.

This is very important, because a negative opinion is not necessarily a false statement.

 

For a statement to constitute slander it must:

a) be demonstrably false

b) it must be spoken

c) it must be damaging to your reputation.

 

For a statement to be considered Defamation, it must:

a) demonstrably false

b) it must be communicated (or publicized)

c) it must harm the reputation of an individual, a business, or a product.

It isn’t just saying something mean about your work, or you.

Should you be subject to slander – that is spoken statements that are damaging to your reputation — then it is firstly important to consider if you have the ability to present evidence of such statements.

If someone has chosen to make a recording of those statements – whether by video, or in a voicemail – this may make that question moot, but where they have not, your course of action may be partly dictated by the evidence you could produce should you ultimately decide to litigate.

As hard as it might be, it would also be important to gather evidence that demonstrates the damage to your reputation. This could be gathered through other reviews or written comments from parties who make reference to the slanderous statements.

In a situation where you are looking to take some action and put the person you believe to be (or  have been) making slanderous statements, then the first step is to write and deliver a cease and desist letter. An example of a cease and desist letter can be found here.

This is assuming that you have not considered the benefit of seeking to find a customer-service oriented solution. It is worth repeating that a negative review does not, in and of itself, rise to the level of slander. Handling negative reviews and even trying to turn them into a positive for your business can be worth your time.

It is important to note that for an attorney to be willing to take on a case where slander is at issue – beyond a cease and desist letter – they will need to see the possibility of seeking damages, unless you are willing and able to foot the bill regardless of the outcome. If you do decide to pursue a legal remedy beyond a cease and desist letter, there are a couple of options.

Firstly, an attorney can file a request for an injunction (a court order making the person stop what they are doing).

Alternatively, an attorney could seek compensation via a defamation claim or a claim for “tortuous interference with the business” or similar.

The latter can be difficult unless you have evidence as mentioned at the beginning of this article. The latter is also an escalation that can lead to a lengthy period of litigation. Because slander is a matter of personal (and business) reputation, be aware that your business and possibly your life will be closely examined in the depositions and hearings that form part of a defamation or “tortuous interference” claim.

It should also be noted, that if the client who is making statements that constitute slander has a business of their own, they may also be contravening trade practices legislation. This may be a end run around instead of the “tortuous interference” or defamation claim approach. This is a state based matter and is a question to ask your attorney.

Be aware that pursuing legal action in a matter relating to slander can be costly. If you do retain an attorney for either course of action, you will need to be prepared to pay for their services. An attorney representing a client for an injunction will need to be paid either hourly or through a fixed fee, as an injunction does not and cannot result in collecting any damages.

For a defamation claim or a “tortious interference” claim, you would likely be required to either pay a retainer or hourly rate (if the attorney is unsure about the likelihood of recovering damages), or the attorney may agree to a contingency fee. Such a contingency fee would be paid out of any damages awarded – and requires an attorney to take some of the risk in the matter.

If your state makes provision for it, a defendant (or respondent) may be ordered to pay attorney fees: this is occasionally awarded in the finding of a tortuous interference or unfair trade practices.

Another alternative might be to pursue an action in  small claims court, but not all states allow for this or even if they do the limits on what damages you can seek do not make it worth while. In some states, it may be a great alternative. In 2012, California increased the limit of claims in small claims court to $10,000. You should note that an Attorney cannot represent you or the respondent (the person who you allege is slandering or defaming you).

So how do you prevent slander?

This is a difficult question. In short, you can’t, mainly because slander by definition has a malicious intent. Doing business well, and developing a positive reputation is about the best protection you can have, so too having an attorney you can ask advice of. What you can’t do is legally require clients not to leave negative reviews.  

The recently enacted Consumer Review Fairness Act means that you cannot legally require your clients to agree to non-disparagement clauses.  so, what do you do when you have a client that reviews you negatively in a way that is slanderous or defamatory? The first amendment does not protect individuals from liability should their speech contain slander, defamation, or libel.

 

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Slander by a client - and what you can do!







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