Libel consists of making untrue, harmful statements to third parties through writing, printing, broadcasting, pictures or other media. Because these means of communication create a record of the defamation, they can have a lasting impact on the reputation of a business. But if someone libels your company, you have a legal remedy only if you can prove what injuries the statements have caused.

Business libel has been much in the news recently because of the lawsuit filed by Dominion Voting Systems, Inc., and its affiliated companies, against the Fox News Network. Dominion, which supplies voting machines to election districts throughout the U.S., asserts that Fox broadcast groundless allegations by then-president Donald Trump’s political allies that Dominion was involved in 2020 election-rigging. Dominion seeks damages of $1.6 billion for reputational damage. Fox contends there is no evidence that Fox’s reporting has done harm to Dominion’s revenues or profitability such as would justify damages on the scale sought.

The trial, expected to last five weeks, is scheduled for late April. Whatever the outcome, the lawsuit offers a concrete lesson about the difficulty of proving damages in a libel claim.

The elements of a libel claim are as follows:

• The defendant made an untrue statement of fact (not merely a statement of opinion).
• The defendant made the statement to a third party or publicly.
• The defendant was at least negligent in checking the accuracy of the statement or, if in reference to a public figure, the defendant made the statement with knowledge of its falsity or with reckless disregard for the truth.
• The plaintiff suffered damages as a result of the defamatory statement, except for rare cases in which the defamation is so egregious that damages are presumed.

Dominion, which is a public figure, argues that emails and deposition testimony of Fox employees and its owner, Rupert Murdoch, show that Fox knew the allegations of election-rigging were false.

However, Dominion also needs to produce evidence of any damages the business suffered and of their connection to the alleged libel. This includes evidence that Dominion lost customers or business relationships or that the viability of the business itself is in danger. Dominion claims it lost $921 million in overall business value, $88 million in actual profits and $600 million in potential future profits. The company also seeks punitive damages.

In a business libel case, an experienced and skilled defamation attorney knows how to demonstrate damages that are based on hard economic data and a causal connection to the alleged libel. This may involve a detailed investigation and the retention of expert financial analysts.

Hemmer DeFrank Wessels PLLC in Fort Mitchell, Kentucky is a full-service business law firm with experience effectively representing plaintiffs in business libel cases. Contact us online or call 859-344-1188 for a consultation.