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The Difference Between Defamation and Disparagement to a Colorado Business

Defamation has littered the headlines this summer. With a keen interest in the Johnny Depp vs. Amber Heard trial, the country received a crash course in defamation. However, this crash course has caused some confusion on the difference between defamation and disparagement.

Defamation and disparagement are becoming more and more common in our courtrooms. Today’s technology allows anyone with a computer or phone to communicate with the world. That means any statement that harms (or helps) a business can easily be published to millions.

To win a lawsuit for defamation, the plaintiff has to prove:

  1. The statement was published;
  2. The statement is a false statement of fact (not just opinion); AND
  3. The statement resulted in damages.

To win a lawsuit for disparagement, the plaintiff has to prove:

  1. The statement was published;
  2. The statement was an intentional false and derogatory statement;
  3. The statement featured another’s product, service, or business; AND
  4. The statement caused existing or prospective customers not to do business with the company.

The laws of defamation and disparagement highlight the battle between free and open discussions/opinions vs. false derogatory and damaging statements. This is the battle, and the internet is where the battle takes place. If you have ever read an online review of a business or product, you understand just how much effect these reviews can have.  A true and accurate online review can be very helpful to consumer decisions and the law should allow for these types of reviews. On the other hand, a false and misleading review can cause unfair damages to the company.

In Depp v. Heard, the jury decided that Heard committed defamation in her op-ed article written for the Washington Post, appearing both online and in hard print.  The jury determined that Heard defamed Depp by publishing the following two statements:

  1. “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.”
  2. “I had the rare vantage point of seeing, in real-time, how institutions protect men accused of abuse.”

While Depp v. Heard provides a good example of defamation, some common examples of disparagement are:

  1. A false statement that a product causes a disease or other harm.
  2. A false statement that a company is engaged in illegal practices.

In looking at these examples, you can start to see the primary difference between defamation and disparagement. Defamation is a false statement that damages a reputation. Disparagement is a false statement that hurts a business’s product or financial rights.

You might wonder why it is important to understand the difference between defamation and disparagement; after all, they are similar claims. This is important when lawsuits are filed because the plaintiff must choose their “claim(s).”  A claim is a legal theory for which the plaintiff believes the defendant must pay them damages (money). For a plaintiff to win, they must prove each element of the claim that they choose to assert in the lawsuit. No one chooses the claim other than the plaintiff; neither the court nor the judge will choose the claims for the plaintiff. If the plaintiff chooses the wrong claim, the judge can dismiss the case because the plaintiff has chosen a claim “for which relief cannot be granted.”

Online reviews have become more and more important. Consumers increasingly use reviews as part of their pre-purchase research. A bad review can have serious negative effects on a business. On the other hand, positive reviews can have substantial positive impacts. Because of the internet, the damages caused by defamatory and disparaging statements are increasing. It is vital that if you believe you are a victim of an illegal statement, you immediately take action because as time passes, more and more people will read the statement.

The difference between an unlawful defamatory/disparaging statement vs. a simple opinion can be difficult to determine. Having an experienced attorney look at the facts provides invaluable help in these situations.

Burnham Law has experienced defamation/disparagement attorneys. If you are the victim of a defamatory or disparaging statement, Burnham Law will fight to get you the damages you deserve. Or, if you have been falsely accused of making a defamatory or disparagement statement, hire Burnham Law to win your defense.

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Ashlee
Hoffmann

Senior Associate - Civil Litigation

Boulder

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