“Presumed Damages” Doctrine Remains Viable in Defamation Cases Involving Purely Private Plaintiffs

W.J.A. v. D.A., 210 N.J. 229 (2012) (later-issued corrected opinion appears here).  The doctrine of “presumed damages” allows plaintiffs in defamation cases to obtain damages even without a showing of actual harm to the plaintiff’s reputation.  In slander cases (other than those involving slander per se, which entails accusations of crime, loathsome disease, serious sexual misconduct, or misfeasance in business), a plaintiff must prove actual damages, and the doctrine of presumed damages is therefore inapplicable.  In slander per se cases, and in all libel cases, plaintiffs can benefit from the doctrine of presumed damages.  The question in this case, which involved allegedly defamatory statements made on the internet, was whether the doctrine of presumed damages remains viable.

This case resulted in a per curiam opinion by the unanimous Court, an unusual circumstance given the length and detail of the decision.  The Court held that in cases involving purely private plaintiffs and private interests, the doctrine remains alive.  The presumption can be used to support nominal damages, and nominal damages, in turn, can be a basis for punitive damages.  However, a plaintiff who seeks a purely compensatory award of damages must show actual harm to reputation.

The Court noted that some states have abolished presumed damages.  However, the majority of states retain the doctrine.  The Court found it important to protect the reputations of private plaintiffs in cases involving purely private concerns, where there is no particular public interest in the parties or the issues.  That counseled in favor of retaining the doctrine.  A criticism of the doctrine, however, was that allowing a jury to award compensatory damages without any showing of actual harm to reputation could lead to unguided and ungovernable damage awards.  Limiting to nominal damages the sums that can be awarded based solely on the presumption, while also permitting punitive damages under the presumption where the circumstances are extreme enough to justify punitive damages, but not permitting compensatory damages unless there is proof of actual harm to reputation, seems a reasonable result.