As tensions rise during the litigation, it is not uncommon for the person on the receiving end of the disparaging statement to threaten to file a defamation lawsuit against the other party. Defamation consists of two types of false statements: slander (false statements made orally) and libel (false statements made in writing). To prove a defamation claim in Pennsylvania, the burden is on the Plaintiff (the party about whom the statement was made) to show:
(1) The defamatory character of the communication.
(2) Its publication by the defendant.
(3) Its application to the plaintiff.
(4) The understanding by the recipient of its defamatory meaning.
(5) The understanding by the recipient of it as intended to be applied to the plaintiff.
(6) Special harm resulting to the plaintiff from its publication.
(7) Abuse of a conditionally privileged occasion.
The numerous elements required under Pennsylvania law to establish a defamation claim is the first indication that these claims rarely come to fruition during a divorce. Contrary to popular belief, it is not as simple as presenting the alleged defamatory statement to the Court and then proving that the statement was indeed false.
Establishing the harm resulting to the victim of the statement is a particularly challenging element to prove. The petitioner must convince the Court that the statement “tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third parties from associating or dealing with him.” Birl v. Philadelphia Elec. Co., 167 A.2d 472, 475 (Pa. 1960). It is not sufficient if the victim of the statement feels “embarrassed or annoyed, he must have suffered the kind of harm which has grievously fractured his standing in the community of respectable society.” Tucker v. Phila. Daily News, 577 Pa. 598, 614 (2004). Harm can be particularly difficult to show in a divorce litigation, where it is often the case that both parties are guilty of making derogatory statements about the other.
Even if a party successfully establishes a defamation claim, the person who made the statement then has the opportunity to present a defense to the claim. Defamation defenses include proving that the statement was actually true, or that the statement was merely an opinion protected under by the doctrine of free speech. While it is the Court that makes the preliminary determination as to whether or not a statement is capable of being defamatory, the claims and defenses are ultimately presented to a jury during a formal trial to determine whether or not the statement was in fact defamatory.The cost and fees associated with a jury trial can quickly exceed the costs and fees of the divorce litigation.
While defamation claims may be threatened in the heat of the moment, formally filing a defamation claim is a serious decision that should be discussed thoroughly with the attorney handling your divorce. Although the likelihood that a party will actually proceed with a defamation claim during a divorce is slim, this does not give a party the freedom to make disparaging remarks about the other party. The misbehavior of the parties during the litigation often becomes another issue argued to the Court, particularly in custody disputes. Divorce litigation is stressful enough. The dissemination of disparaging remarks will only complicate and prolong the matter, regardless of whether a civil lawsuit ever develops.