How do you prove defamation? An expert answers

By Joe Schoenmann

Friday, Jan. 20, 2012 | 3:11 p.m.

Former Henderson City Councilwoman Kathleen Vermillion has filed a lawsuit, claiming defamation and/or invasion of privacy by her ex-boyfriend, County Commissioner Steve Sisolak.

The high-profile allegations have some asking how difficult or easy it is to prove such cases.

UNLV journalism/media studies professor and Harvard Law School graduate Stephen Bates outlined several benchmarks that have to be met, noting that defamation is very difficult to prove, while invasion of privacy is less so.

In the suit, Vermillion claims that Sisolak told others that a drug test she took came back positive for a synthetic opiate.

The allegations are related to Vermillion’s work with the Nevada Partnership for Homeless Youth. In a letter to the Nevada Attorney General requesting an investigation of the charity, its interim executive director, Arash Ghafoori, claims Vermillion tested positive for methadone. (Ghafoori is asking the Attorney General to take control of the charity.)

Complicating matters is the fact that Clark County, the entity named in Vermillion’s lawsuit, approved a grant of $214,217 to the Nevada Partnership for Homeless Youth. Sisolak told the Sun he has personally donated more than $200,000 to the charity.

Vermillion said Sisolak ended their relationship in October. Vermillion agreed to take a drug test in December, the suit says.

To prove defamation, Bates said seven standards generally need to be met in Nevada:

• It must deal with a statement of fact, not opinion. Uttering “she uses methadone” as fact, could be defamatory if it’s not true.

• The statement has to be published. That doesn’t mean written or typed. “Published” can be simply stating something to one other person.

• The statement must identify a person.

• It has to harm someone’s reputation.

• It has to be false. Bates said this could be the biggest hurdle for Vermillion, since in her lawsuit she admits she tested positive for an opiate.

• A public official must prove that the defendant knew that the statements were false, or acted with “reckless disregard” related to their accuracy.

• The plaintiff generally has to prove that a statement cost them money.

To prove an invasion of privacy, Bates said, four standards need to be met:

• The information has to be disclosed to a sizable group of people. “Sizable” is not defined.

• The Nevada Supreme Court has said the private facts that are disclosed have to be considered offensive “to a reasonable person of ordinary sensibilities.”

• The statement must reveal private facts. If the information is already public, the defendant isn’t liable for invasion of privacy.

• If the revealed facts is information of legitimate concern to the public, the person disclosing the facts might use that as a defense.