I got this question quite a bit from clients. They are accused by another
person of a crime. What happens if the case is never charged but the gossip
is in the community? Can the target of the gossip sue? Also, what happens
if a client is exonerated? Can he/she sue the accuser and recover damages,
including legal fees?
First, Ohio recognizes a series of claims available to targets of false
statements. These include defamation, slander, slander per se, and libel,
false light/invasion of privacy and potentially civil conspiracy if others
are involved in the gossip-mongering.
Defamation, which includes both libel and slander, is a false publication
causing injury to a person's reputation, exposing the person to public
hatred, contempt, ridicule, shame or disgrace, or affecting the person
adversely in his or her trade or business. Generally, slander refers to
spoken defamatory words and libel refers to written defamatory words.
To succeed on a claim of defamation, the accused must demonstrate (1) that
a false statement was made, (2) that the statement was defamatory, (3)
that the statement was published, (4) that the plaintiff suffered injury
as a proximate result of the publication, and (5) that the defendant acted
with the required degree of fault in publishing the statement." Further,
to survive a motion for summary judgment in a defamation case, the plaintiff
must make a sufficient showing on each of the five essential elements.
The United States Supreme Court "has repeatedly reminded us that
almost all speech is protected other than 'in a few limited areas.' "
Novak v. Parma, 932 F.3d 421, 427 (6th Cir.2019), quoting
United States v. Stevens, 559 U.S. 460, 468 (2010) (the "limited areas" of speech not
protected by the First Amendment include speech expressed as part of a
crime, obscene expression, incitement, and fraud).
Accusers will wander into legal peril if they falsely accused another
private person of illegal sexual activity, for instance, that other people
may believe is an actual fact.
There are certain accusations that are so patently offensive as to constitute
defamation per se. A statement can be defamation "per se," in
which both damages and the requisite degree of fault are presumed, where
the statement tends to injure a person in his or her trade, profession,
or occupation.
Ohio law provides more protection to private people than public figures
in terms of a lower bar (negligence) versus the higher bar to recover
from public figures (actual malice). However, it has been our experience
that most false accusations against a private person that are false come
from a place of “actual malice”.
Truth is always a defense to defamation. If a man is accused of rape,
let’s say, and he suffers provable damages as a result of this accusation
and the accusation is proven to be false, he may be able to recover damages
from the accuser.
NOTE: every case is unique and turns on small facts. It is best to receive
legal advice from a lawyer familiar with false accusations before deciding
to sue an accuser.