• November 7, 2013
Photo by Jon Oropreza through Flickr Creative Commons

Photo by Jon Oropreza through Flickr Creative Commons

The much-covered Ventura/Kyle kerfuffle continues. But the attached supplemental expert report of Prof. David Schultz highlights an interesting problem with all defamation or disparagement cases.  Proving (or disproving) damages or harm from defamation or disparagement is not easy.

If only there were a reputational seismometer!

Maybe there is?

The internet! (As refined and distilled through the filters of an expert?)

Particularly with public figures, while it may take expertise to collect and analyze the data, there are definitely data points that one can collect and, it seems to me, one can analyze to reach a determination as to whether a given statement (or statements) affected the public figure’s brand equity — that is, whether he was damaged — with a reasonable degree of accuracy.

We can analogize to drops (or spikes) in stock prices from the release of bad or good news about a company.  We can analogize to market analysis in other contexts such as the “Tylenol Scare of 1982.”  There can be little doubt that Tylenol sales dropped when that disaster happened and later recovered (or, for the most part, anyhow — maybe there are some fretful consumers out there who avoid the product to this day notwithstanding the company’s famed dramatic and comprehensive efforts to ensure this cannot happen again).

Subatomic ParticlesFor the more visually inclined, we can analogize to tracing the paths of subatomic particles or the clashing ripples of rain drops on a pond. We live in a world now where information, particularly information about public figures, leaves traces wherever it goes.

The challenge for less well-known victims of defamation or disparagement (in cases where parties have entered into a non-disparagement agreement, for example), on the other hand, is far more difficult.  How could one prove that nasty, unflattering, or even subtle insults (“I hear that the former Company President was an excellent crossing guard when in high school.  No surprise there.  He’s got that vigilance down.  His voice really carries.  I am not so sure he’s be the right person to run a financially sophisticated operation but his heart is almost always in the right place.  You have to give him that….”)

Tying this kind of ridicule to direct harm or damages can be a challenge.  This is both understandable and unfortunate at the same time in my view.  As with tort damages for “pain and suffering,” these damages are just so difficult to monetize.  But this difficulty in definitive quantification makes them no less real.

Of course, the problem with Ventura’s claim is that his public persona was the subject of substantial public ridicule before and after Kyle’s alleged defamatory statements.  It is increasingly looking like a Minnesota jury will ultimately decide whether Kyle harmed Ventura’s reputation or whether it was “in the red” from the get-go and could not sink much lower in the opinion of many.

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