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I'm sorry to hear about your situation. Can you tell me what state this pertains to?
Thank you. One moment please...
Yes, you could certainly sue and win in a case for defamation. The reason I asked about your state is that defamation and the elements change from state to state, and generally there is a requirement of "special damages". Special damages means that you be able to prove quantifiable harm (that is, that you lost a job, hence lost wages, or some other way of economically proving, to a reasonable degree of certainty, how you were damaged).
But there's an exception to that, called "defamation per se", which in certain situations you don't have to prove actual damages, but that damages are presumed.
Under Illinois law, the elements of a defamation claim are:
Illinois recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered defamatory and are assumed to harm the plaintiff's reputation, without further need to prove that harm. In Illinois, a statement that does any of the following things amounts to defamation per se:
Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d 825, 839 (Ill. 2006).
Clearly number 5 would apply in your case, and therefore you could meet the definition of defamation per se, and be able to maintain a case even against the objection of failure to show special damages.
I see. What,if any, would be the advantage of my having a letter sent to her by a lawyer stating if a retraction is not made I will in fact sue?
It would be a cheaper way to get her into compliance and protect your reputation. If you go to court without "special damages", while you can still win, it might only be "nominal" damages (that is, an award of $1 or $10 showing that you won your case, but it really was not economically worthwhile to do so).
I would send a cease and desist letter, with a demand that she specifically retract her statements.
Now one potential issue is that opinions are not actionable.
It has to be a specific claim of fact.
It sounds like this is not an issue, but if she said "I think my husband and her are having an affair", that's legally different than saying "My husband and her are having an affair".
Well, it was another mother who brought it to my attention.
And that would show that there was a communication to a third party, which is important. But the content of the statement is very important as well.
According to the mother she specifically said we were having an affair.
If there's written evidence (emails, texts, etc...) then that would actually be called "libel", and that would be better proof. But if you can have a witness that testifies that this was clearly a statement of material fact, and not an opinion, then that would be something that could very well be actionable against her.
Scotty, you have given me the legal rights I am Looking for. I think at this point a letter would be my starting point. A huge issue here is not only my reputation in the school community but how this will affect my daughter and her peers relationships.
No question about it. I do wish you the best of luck in this matter. I hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
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