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By Alex Sisemore

An early decision by the Oklahoma Supreme Court announced, “A man’s good name and reputation is his most valuable personal and property right and one that no man may wrongfully injure or destroy without being held accountable for.”  Dusabek v. Martz, 249 P. 145, 147 (Okla. 1926).  Such a sentiment is the reason why the Oklahoma legislature and Oklahoma courts have developed and implemented laws to safeguard individuals against defamatory publications.

Defamation is divided into two distinct categories: libel and slander.  Both have been statutorily defined and interpreted by the courts.  The Oklahoma Statutes define “libel” as:

[A] false or malicious unprivileged publication by writing, picture, or effigy or other fixed representation to the eye, which exposes any person to public hatred, contempt, ridicule or obloquy, or which tends to deprive him of public confidence, or to injure him in his occupation, or any malicious publication as aforesaid, designed to blacken or vilify the memory of one who is dead, and tending to scandalize his surviving relatives or friends.

Okla. Stat. tit. 12, § 1441 (2012) (emphasis added).  The Oklahoma Statutes go on further to define “slander” as the false and unprivileged publication, other than libel (i.e. spoken), which:

(1) Charges any person with crime, or with having been indicted, convicted or punished for crime.

(2) Imputes in him the present existence of an infectious, contagious or loathsome disease.

(3) Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profit.

(4) Imputes to him impotence or want of chastity; or

(5) Which, by natural consequences, causes actual damage.

Id. § 1442.

To prevail in an action for defamation generally, a private individual must prove (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication.  Trice v. Buress, 137 P.3d 1253, 1257 (Okla. Civ. App. 2006).  Regarding these four elements to a defamation claim, two points are important to note.

The first point is that “publication” simply means that the defamatory statement was communicated to a third-party (i.e. to someone other than the plaintiff).  The publication may be either intentionally published by the publisher or it may be published as the result of the negligence of the publisher.  Regardless, without the publication of the defamatory material to a third-party there is no cause of action for defamation.

The second point worth noting relates to the fourth element mentioned above.  That element of a defamation claim speaks to the difference between the pleading requirements of various defamation claims.  Generally, all defamation claims (libel and slander) fall into one of two categories.  The first category is per se defamation.  The second category is per quod defamation.  Whether a defamatory statement is per se or per quod plays an important role in the actionability of a defamation claim and may present a significant roadblock for a plaintiff in recovering for his/her claim.  Most significantly, whether the defamation alleged is per se or per quod is important regarding the damages that must be proven.

The Oklahoma Supreme Court has long recognized the distinction between per se and per quod defamation, stating:

In connection with slander and libel, the term [per se] is applied to words which are actionable because they, of themselves, without anything more, are opprobrious. In other words, a publication is actionable per se when the language used therein is susceptible of but one meaning, and that an opprobrious one, and the publication on its face should that the derogatory statements, taken as a whole, refer to the plaintiff, and not to some other person.

Hargrove v. Okla. Press Pub. Co., 265 P. 635, 636 (Okla. 1928) (emphasis added).  There is no clear and fixed rule to determine whether a statement is per se or per quod; rather, a statement must be examined by the court, considering “only the thought, idea, impression, or opinion conveyed . . . everything appearing in the article, be it inference, insinuation, irony, ridicule, sarcasm, the friendly or unfriendly tone, its arrangement, form, and style.”  Dusabek v. Martz, 249 P. 145. 146 (Okla. 1926).  If the court requires the use of extrinsic facts or circumstances to find that the publication is defamatory, the publication is not per se defamatory.

The distinction between per se and per quod defamation does not affect whether a plaintiff is legally permitted to recover for defamation in general—both are actionable.  However, the distinction is important for pleading reasons and may ultimately be a deciding factor in determining whether a plaintiff is able to state a cause of action.  Importantly, if a defamatory statement is not per se defamatory, then a plaintiff must not only allege the facts, circumstances, and meaning of the words that make the statement defamatory, but must also plead and prove special damages.  Kee v. Armstrong, Byrd & Co., 182 P. 494 (Okla. 1919), overruled on other grounds by Dusabek v. Martz, 249 P. 145 (Okla. 1926); Owens v. Clark, 6 P.2d 755, 760 (Okla. 1931).  A plaintiff does not need to prove special damages if the defamatory statement is per se defamatory—they are presumed.  “Special damages” in this context refer to economic damages that are calculable with relative certainty.  Because it may be difficult to prove the plaintiff was injured economically based on the alleged defamatory statement, the requirement of pleading and proving special damages typically precludes many plaintiffs from recovering in defamation claims absent a showing of a per se defamatory publication.

A defamation claim has a one-year statute of limitations and has several defenses a defendant may potentially raise, including truth (of the statement) and privilege (to publish the statement).


*Author’s note: Defamation claims are often very difficult to win not only because of the statutory defenses that may be raised, but also because the public policy for protecting a person’s reputation is often weighed against important First Amendment considerations.  Moreover, even in per se defamation claims, where damages are presumed, plaintiffs may walk away with only very nominal damages. Just because damages are presumed does not mean that the amount of damages presumed will be large—a court may very well decide that a plaintiff is entitled to recover only $1 for the defamation if other damages are not proven.