The New Jersey Supreme Court has strictly limited the ability of
defamation plaintiffs to recover anything other than nominal
damages under the presumed damages doctrine. While the Court
reaffirmed that presumed damages still are recoverable in New
Jersey, it held that plaintiffs can recover only nominal damages
unless they prove they sustained actual damages as a result of the
In W.J.A. v. D.A., No. A-77-10 (May 16, 2012), David
Adams allegedly defamed Wayne Anderson (both fictitious names
created by the Court) by publishing statements on a website he
created that detailed alleged sex abuse by Anderson. Adams's
website also alleged that Anderson perjured himself and intimidated
a witness during an earlier civil suit concerning the abuse claims.
The site included Anderson's name and address. The only proof
of damages Anderson offered involved anguish and emotional injury,
which the judge characterized as subjective moral reactions.
Finding these allegations insufficient as a matter of law to
sustain a defamation claim, the trial court granted summary
judgment for Adams even though his statements were defamatory
per se. The Appellate Division reversed, holding that
plaintiffs can recover damages in a defamation action without
proving actual harm.
On appeal to the Supreme Court, Adams argued that the doctrine
of presumed damages was "an archaic, unsettled presumption
over proof in fact" that does not serve the goal of defamation
law — compensating plaintiffs for actual reputational
harm. Anderson, on the other hand, argued that he should not be
precluded from presenting his case to a jury simply because he
lacked concrete proof of injury.
Compensatory, punitive, and nominal damages are available in
defamation actions under New Jersey law. Actual damages include
economic damages as well as reputational damage and the
humiliation, anguish, and suffering flowing from the reputational
damage. Presumed damages fall within this category and are simply
the damages expected when one's reputation is injured. These
damages are difficult to prove, even though they are likely to have
occurred, and therefore, are presumed. Under New Jersey law,
presumed damages are available in all libel cases. In slander
cases, presumed damages are available only for slander per
se — that is, when the alleged defamatory
communication accuses the plaintiff of committing a crime, having a
loathsome disease, engaging in business misfeasance, or committing
serious sexual misconduct. While the Court, in a footnote, noted
that defamatory Internet postings would be libel, it also stated
that the distinction here did not make a difference in the outcome,
as the allegations could fall into the category of slander per
se as well.
Addressing the continued viability of presumed damages, the
Court noted recent criticisms of the doctrine, pointing out that
several jurisdictions (though not a majority) have done away with
it and instead require proof of actual reputational injury. The
criticisms the Court highlighted are twofold — modern
tort law should not provide a remedy without injury, and there is
no uniform method by which a jury can value presumed damages.
The Court brushed off the first criticism, explaining that
vindication is an important component of a defamation claim. The
Court noted that the presumed damages doctrine is a procedural
device relieving a plaintiff of the need to prove damage. This is
particularly important where proof of actual loss may be hard to
come by — for example when a website's reach creates
a very wide potential audience for a defamatory statement.
The Court took more seriously the second criticism —
uniformly valuing presumed damages. For this reason, the Court
limited the applicability of the presumed damages doctrine such
that it only permits a plaintiff to survive summary judgment and to
obtain nominal damages at trial. The Court precluded the award of
compensatory damages absent proof of some form of actual harm
— monetary or otherwise.
Thus, while the doctrine of presumed damages in a defamation
case continues to survive in New Jersey, a plaintiff's ability
to recover under the doctrine has been strictly limited. Without a
showing of actual harm, damages will be nominal. However,
plaintiffs can still rely on the presumed damages doctrine to
defeat a motion for summary judgment and claim nominal damages.
Corporate tweeters or bloggers – employees who post promotional and often entertaining commentary on behalf of their employers’ businesses – add much of their own personal brand – their voice, their opinions, their snarky remarks – to the information they are disseminating on the company’s behalf.
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