Under Indiana law, the elements of a defamation claim are:
- a communication with defamatory imputation;
- publication; and
Bochenek v. Walgreen Co., 18 F.Supp.2d 965 (N.D.Ind. 1998).
A plaintiff must also prove that the defendant’s fault in publishing the statement amounted to at least negligence.
Defamation Per Se
In Indiana, a communication constitutes defamation per se if it imputes:
- criminal conduct;
- a loathsome disease;
- misconduct in a person’s profession or occupation; or
- Sexual misconduct.
Branham v. Celadon Trucking Services, Inc., 744 N.E.2d 514 (Ind.App.2001).
In an Indiana claim involving defamation per se, the plaintiff does not need to prove actual damages.
Indiana applies the “actual malice” standard of fault in defamation claims involving private figures if the disputed statements are newsworthy or involve matters of public concern. Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E.2d 130 (Ind. 2006). Most states apply a negligence standard in defamation claims involving public figures.
Privileges and Defenses
Indiana courts recognize a number of privileges and defenses in the context of defamation actions, including substantial truth, the opinion and fair comment privileges, and the fair report privilege. Indiana has not recognized or rejected the neutral reportage privilege and has not yet considered the wire service defense.
There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party – not you or your employee or someone acting under your direction – posts something on your blog or website that is defamatory.
Neutral Reportage Privilege
Indiana has not explicitly recognized or rejected the neutral reportage privilege. The sole case law on the issue is a 7th Circuit decision that upheld an unpublished Indiana federal court judgment but declined to address the issue of neutral reportage. Woods v. Evansville Press Co., 791 F.2d 480 (7th Cir. 1986). The federal trial court had recognized and applied the privilege, but the 7th Circuit affirmed on other grounds.
Wire Service Defense
Statute of Limitations for Defamation
Indiana is unusual in that its courts have held that the statute of limitations begins when the “damage” of the statement is “susceptible of ascertainment,” rather than when the statement was published. Wehling v. Citizens Nat’l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling court determined that this means the statute of limitations begins when the plaintiff knew about the harm caused by the disputed statements or would have known about the harm if she had exercised due diligence.
If you think you may have a defemdnation claim, be sure and contact our firm.