Elements of a Claim
The standard elements of defamation in Wisconsin are: (1) A false statement; (2) communicated by speech, conduct or in writing to a person other than the one defamed; and (3) the communication is unprivileged and tends to harm one’s reputation, lowering him or her in the estimation of the community or deterring third persons from associating or dealing with him or her.
Courts have also used the elements found in Restatement (Second) of Torts § 558 (1977): (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.
The “statement” that is the subject of a defamation action need not be a direct affirmation, but may also be an implication. Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990).
Notice Requirement: Under Wisc. Stat. § 895.05, before filing suit, a person believing he has been defamed in a newspaper, magazine or periodical must give notice to the publication, and give them an opportunity to correct the libelous matter. The libeled person must give notice of the statements alleged to be defamatory, and a statement of the true facts. The publication must publish a retraction if the true facts are ascertainable with reasonable certainty, or else print the libeled person’s statement of the facts.
This section applies only to print media, not broadcast. Hucko v. Schlitz Brewing Co., 100 Wis. 2d 372, 302 N.W.2d 68, 70 (Wis. Ct. App.1981). In addition, “Periodicals” are, based on Webster’s New International Dictionary, publications that appear at regular or stated intervals. Accordingly, bulletin/message board functions online have been held to be outside the scope of the statute. It's In the Cards, Inc. v. Fuschetto, 193 Wis. 2d 429, 436, 535 N.W.2d 11, 14 (Ct. App. 1995).