Reputational Injury Without a Reputational Attack: Addressing Negligence Claims for Pure Reputational Harm

October 1, 2014

This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation.

When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for handling the claim. This Note argues that courts should adopt a multistep approach to handling such claims. The court should first determine whether the claim is communication-based or not. If it is a noncommunicative claim, it should be allowed to stand as a simple negligence claim. If, however, the claim is communication-based, it should be presumptively displaced by the torts of libel and slander.

October 2014

No. 1