Dear Mary, There’s an attorney here in town who I think is a jerk. Last week I told a friend that the attorney is a crook and he breaks the law because he thinks he can get away with it. He’s not actually a crook, but I really don’t like him. The attorney found out about what I said and I’m worried about him suing me for defamation. But it’s a free country, I can say whatever I want and what I said was just small-town gossip, right?

The First Amendment is one of the most misunderstood parts of the Constitution. Let me be very clear: You cannot say whatever you want about whomever you want. Generally speaking, defamation is a false statement that is harmful to someone’s reputation. If you knowingly lie about a person’s reputation, or if you should have known it was a lie, you may be liable. “Libel” refers to written defamation, while “slander” refers to a spoken defamation.

In order to prove that someone is defaming you or your business, you must be able to prove that a false statement of fact was communicated to a third person, who understood that remark to be harmful and about you or your business.

In this case, the attorney could say that you knowingly or recklessly lied that he broke the law, when really you knew otherwise. Furthermore, you knew that your friend would believe your statement. The attorney will also say that what you said is harmful to his reputation, as well as his business. An attorney who has a reputation for breaking the law won’t be getting a lot of clients. If people hear “this guy is a crook,” they will skip him and find another lawyer.

The truth is always a defense to a defamation claim. However, proving that something is true can be difficult and expensive. If you can prove that this attorney is indeed a “crook,” and that he breaks the law, you may be able to defeat a defamation suit.

In addition, statements of opinion are not defamatory. If you had said, “I really don’t like that guy and I wouldn’t hire him,” then you probably would have been fine. Coming right out and falsely saying that he’s a crook is defamatory.

A court will also take the purpose and intent of your statement into consideration. Sometimes, the circumstances are such that the statement could not possibly be taken as the truth.

There’s another interesting thing to mention about your situation: If your friend relies on what you said and tells other people that the attorney is a crook, would he be liable for defamation as well? The answer may be yes. Every repetition of defamation is a separate communication and gives rise to a new and separate cause of action.

The lesson to be learned here is that we shouldn’t “gossip” about people or businesses. If something isn’t true, or you aren’t sure, it’s best not to repeat it.

Mary Hudson is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.