Protecting Your Reputation - Understanding Defamationby Malina Piontek, Attorney, LLC Principals are commonly viewed as the “face” of the school district, especially given their presence at school/community events. While this is usually a positive sign of good leadership, the flip side is that principals also commonly face the brunt of criticism for unpopular decisions; may often be blamed for curriculum decisions; and can be roundly criticized for decisions to discipline, or not to discipline, students. Criticism can come from students, parents, or community members, and the criticism can sometimes cross the line from mildly annoying to outright vicious and even defamatory statements. This Update is designed to inform you about the elements of illegal defamation, and provide you with practical guidance should you be the target of public criticism arising out of your job performance.
Defining Defamation: When Does Criticism Cross The Line? In general, a claim for defamation exists when a person makes a false statement of fact to a third person, causing harm to the reputation of the person about whom the statement is made. Claims in Wisconsin can arise from common law (decisions by a court) or statute. A common law defamation claim has three elements. First, the statement must be false. Truth is an absolute defense to a defamation claim. Statements that are substantially or mostly true will not be considered defamation. While statements of opinion are not considered defamation, prefacing clearly defamatory statements with “in my opinion” does not always insulate the speaker. So, if a parent complains during a public comment period of a school board meeting that a principal is lazy, that statement—while unpleasant—will be difficult to prove true or false. But if a principal is accused of embezzling $50,000 from the school district or of assaulting a student, those statements have the potential to be proven true or false. Second, the statement must be communicated to a person other than the person defamed. This element is known as “publication.” The statement need not be published in the traditional sense, such as in a newspaper. The statement may be written (libel) or oral (slander). So, for example, a defamatory statement may be made during a public comment period of a school board meeting, or in another type of meeting. It could be made in a petition, a group e-mail or blog. Or, perhaps more common these days, it could be made via social media such as Facebook or Twitter. Third, the statement must not be privileged and must tend to harm the reputation of the person, so as to lower him/her in the opinion of the community or to deter others from associating or dealing with him/her. A statement that is privileged is not actionable regardless of the intent of the speaker, but this is not true if the privilege is abused. Beyond the existence of a privilege, this element also looks to whether the statement has had a tangible effect on the person about whom the statement was made, i.e., did the statement harm the person’s reputation so as to cause a loss of opportunity or other monetary damage? The statutory prohibition against defamation (Wis. Stat. § 942.01) encompasses the basic elements of common law defamation, but states them a bit differently. The statutory language provides as follows: (1) Whoever with intent to defame communicates any defamatory matter to a 3rd person without the consent of the person defamed is guilty of a Class A misdemeanor. (2) Defamatory matter is anything which exposes the other to hatred, contempt, ridicule, degradation or disgrace in society or injury in the other's business or occupation. (3) This section does not apply if the defamatory matter was true and was communicated with good motives and for justifiable ends or if the communication was otherwise privileged. (4) No person shall be convicted on the basis of an oral communication of defamatory matter except upon the testimony of 2 other persons that they heard and understood the oral statement as defamatory or upon a plea of guilty or no contest. Thus, a statutory claim will generally arise when a statement directs hatred, contempt, ridicule, degradation or disgrace towards a particular person. As a Class A misdemeanor, it exposes the person making the defamatory statement to punishment by a fine of no more than $10,000 and/or nine months in prison.
An Example of Defamation Arising Out of a Facebook Posting To provide an example or what may constitute social media “publication,” consider this real life fact scenario. A defendant created and made posts to a phony Facebook page, stating that a university instructor was engaged in “underhanded business practices,” was a “low life,” a “preying swindler,” and was a “loser.” The defendant also e-mailed the plaintiff on his university account stating that the instructor would soon pay for his alleged “financial recklessness.” The instructor sued the defendant under Wisconsin’s defamation statute. The defendant argued that the statements were “substantially true” based on public records showing the instructor had several foreclosure, bankruptcy and collections actions filed against him. The district court disagreed, awarding the instructor $25,000 in damages. The district court stated that vague statements of opinion about the instructor being a “loser” were qualitatively different from the other statements, which accused the instructor of defrauding banks and credit card companies, and engaging in questionable business practices. The defendant appealed the award, and the Wisconsin Appeals Court agreed with the district court, finding that the Facebook posts which were accessible to six Facebook “friends” (and potentially to many more) were intended to negatively impact the instructor’s reputation. Thus, the defendant had to pay the professor the damages awarded by the Court.
Giving False Information for Publication/Libel Wisconsin law also prohibits libel, which is essentially written defamation. The statute provides: “Whoever, with intent that it be published and that it injure any person, and with knowledge that it is false, communicates to a newspaper, magazine, or other publication any false statement concerning any person . . . is guilty of a Class A misdemeanor.” It carries the same penalties set forth above for defamation. Wis. Stat. §942.03. Pursuant to another Wisconsin statute (Wis. Stat. § 895.05 (2)) the person who is the subject of a libelous publication must give the responsible party an opportunity to retract the defamatory statement, via a written demand for retraction. The written demand must specify the article and the statements therein which are claimed to be false and defamatory and a statement of what are claimed to be the true facts. The publisher then has one week after receiving the written notice to either retract or print a correction. If the alleged defamatory statement is found to be true, the defendant can use the retraction to help mitigate or avoid damages suffered by the plaintiff.
Quiz Time: A Hypothetical Which Could Arise in Your District How would you approach the following hypothetical fact pattern arising in your school district? Assume a parent organizes a group of parents and students who are unhappy with the district’s new reading curriculum. The parent tells other parents during informal meetings that the principal presented the school board with inaccurate data to support the curriculum adoption, and, indeed, misled the board with the inaccurate data. During public comment, the parent says the same thing to the school board in an open session. The parent sends follow up e-mails to the board as a group stating that the principal failed to listen to parent concerns and was disrespectful. The parent starts a blog and a Facebook closed group, and also drafts and distributes a petition to both parents and students containing statements similar to those described above. (While this example is a hypothetical, it is eerily similar to some real world examples.) Does the principal have a claim against the parent? In this hypothetical, the more vague statements about the principal being disrespectful are not easy to prove true or false. Being “disrespectful” may be more in the eyes of the beholder and, thus, opinion rather than fact. But the statements about use of inaccurate data and misleading the board would be easier to prove true or untrue and thus, might meet the first element of defamation. Moreover, each of the communication methods—oral statements, Facebook posts, blog entries, and written statements in the petition—likely meet the second element defamation, i.e., publication. Finally, the third element—harm to the principal’s reputation, so as to lower him or her in the opinion of the community—could likely also be met. In sum, the principal may indeed have a valid claim against the parent.
What’s a Principal to Do? So, the million dollar question is, what’s a principal to do? Filing a lawsuit may be an option, but litigation is time-consuming, expensive, emotionally exhausting, and may further harm the principal’s reputation in the community. Unfortunately, becoming known as a principal who filed suit against a parent, student or community member is usually not helpful to your long term career goals, no matter how legally right you are. Moreover, in the age of Google searches, filing a claim could lead to difficulty finding other employment or successfully seeking career advancement. In a public school setting, concerns about potential defamation frequently “come with the territory,” so it may be wiser to pursue a less adversarial approach. That approach might include:
Each of these recommendations essentially boils down to improving and fine tuning district communication with, and to, stakeholders. Utilizing some or all of these methods may help prevent both merely annoying criticism and defamatory statements from being made in the first place.
*This article was written by Attorney Malina Piontek, AWSA’s Level I Legal Services Provider, with the assistance of Attorney Mary Anne Oemichen. You may direct your Level I call-in questions to Malina at 608-497-3037. You may email her at [email protected]. The views expressed herein are exclusively those of Ms. Oemichen and Ms. Piontek. This article was designed to provide you with general authoritative information and with commentary as a service to AWSA members. It should not be relied upon as legal advice. You are encouraged to contact your district legal counsel should you require legal advice regarding this topic. Back to Homepage |