The New Jersey Supreme Court recently affirmed the concept that damages will be presumed in certain private defamation cases, relieving plaintiffs of the burden to prove actual harm.

In the case of W.J. v. D.A., the plaintiff contended he was defamed by the what the defendant had posted on an internet website. Although not germane to the ruling, the underlying dispute pertained to a claim by the defendant that he had been sexually molested by his uncle. The uncle denied the claim, and alleged internet postings by his nephew were defamatory "per se", since they had falsely accused him of sexual/criminal misconduct.

The uncle's claim was dismissed by the trial judge, who agreed that while the internet postings were defamatory "per se," they were analogous to libel rather than slander. Accordingly, the trial judge determined that the uncle was required to submit evidence of actual harm to his reputation, but had failed to do so. The uncle's claim was therefore dismissed for lack of proof of damages.

The Appellate Division reversed, holding the matter should not have been dismissed, but rather should have been submitted to a jury for determination as to whether the uncle suffered any actual harm to his reputation.

The Supreme Court was then faced with the question of whether a defamed private citizen should be required to prove actual harm to his or her reputation in order to prove a prima facie case, or whether damages would be presumed due to the very nature of the defamatory statements.

The Supreme Court ruled in favor of affirming application of the "presumed damages" doctrine, noting that permitting the recovery of nominal "presumed damages," where no proof of actual damages was demonstrated, served the purpose of deterring defamatory conduct. However, the Supreme Court specifically noted that absent proof of actual harm, the amount of "presumed damages" should be nominal (the court did not elucidate on what that meant dollar-wise) and that no compensatory damages would be available absent proof of actual harm.

Earlier cases had suggested New Jersey might be moving away from the doctrine of "presumed damages" in defamation actions pursuant to the idea that if the affected person was unable to demonstrate actual harm, no financial remedy should be available. However, this case affirms that, at least in cases involving defamation "per se" (false allegations of criminality, of having a foul disease, sexual misconduct, and the like) the victim of the defamation need not prove actual harm to be entitled to recover nominal damages from the offending party. In essence, the Supreme Court found that where one is the victim of defamation "per se," reputational harm will be presumed due to the nature of the defamation.