CAUSES OF ACTION: DEFAMATION (Gibson v. Raycom TV Broadcasting COA, PUB, 11/2/2012)

From: Gibson v. Raycom TV Broadcasting COA, PUB, 11/2/2012

CAUSE OF ACTION:

To establish a case of defamation in Kentucky, four elements must be proven. The elements require the plaintiff to prove: defamatory language, about the plaintiff, which is published, and which causes injury to reputation. Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). Words are defamatory when the words tend “to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or, (3) injure him in his business or occupation.” McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981).

Whether words are defamatory per se as been discussed by the Kentucky Supreme Court in Hill v. Evans, 258 S.W.2d 917 (Ky. 1953). “Generally, defamatory words written or spoken of another are divided into two classes in determining the extent to which they are actionable. Words may be actionable per se, or per quod.” Id. at 918. If words are defamatory per se, damages are presumed and the plaintiff may recover without alleging or proving special damages. Id. Later, in another case, our Court went on to explain that:

Statements classified as defamatory per se include those which attribute to someone a criminal offense, a loathsome disease, serious sexual misconduct, or conduct which is incompatible with his business, trade, profession, or office, [but w]ords may be actionable per quod, by contrast, only if there is an allegation and proof of actual damages.

Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 61 (Ky. App. 2006)(footnotes omitted).

Significantly, a claim of defamation may be defeated by establishing the truth of the matter asserted. If so, the party has an absolute defense to the claim of defamation. Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011). Still, “the defendant has the burden of proving truth as an affirmative defense or ‘justification’ by a preponderance of the evidence.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 796 (Ky. 2004). Yet, in cases involving the media, the First Amendment precludes a defamation judgment if the contested statements were “substantially true.” Kentucky Kingdom Amusement Co. v. Belo Kentucky, Inc., 179 S.W.3d 785, 801 (Ky. 2005)(citing Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993)).

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