Unfortunately, defamation of character claims are extremely difficult to prove in the court. As the plaintiff (the accusing), the burden of proof falls on you to prove the defendant (the accused) did what you’re claiming. Additionally, slandering is considered a “tort“, which is a civil wrong, rather than a criminal one.
But before we can talk about how to move forward with a defamation case, we need to understand what defamation is. At its core, defamation is a catch-all term used to describe a statement that unjustly hurts someone’s reputation. Libel is the written form of a statement that hurts someone’s reputation while slander is the spoken form, but with the advent of the internet, things can get a little more complicated than that.
The Differences Between Libel & Slander
This type of defamation refers to a defamatory statement or representation made in a printed or fixed format. It can involve text, pictures, or both. For example, a photograph used out of context can constitute libel. Moreover, the person publishing the statements or photographs must do so knowing that they are presenting false information.
When one person verbally makes a defamatory statement or, occasionally, hand gestures and facial expressions can be considered libel. The words or physical actions must somehow undermine the reputation of the accused. Again, the person making the slanderous statement must know that they are spreading false information.
But Aren’t Slander & Libel Protected By Free Speech?
The First Amendment (freedom of speech) does not protect slander or libel. Individuals possess a right not to be subjected to falsehoods that impugn their character, so slander cannot be protected. But with the first amendment being the most vigorously protected amendment, there are some grey areas and ethical implications of defamatory statements – protected or not.
Additionally, the first amendment does not protect things that may lead to criminal acts or endanger public safety. Saying something that could cause public panic, like the classic “There’s a fire!” in a movie theater, is not protected by free speech laws. Likewise, inciting another person or group to commit a crime is also not protected by the First Amendment.
Similarly, the First Amendment does not allow for sedition, which is speech that advocates for the violent overthrow of the government or committing crimes against the government.
What Do You Have To Prove For Defamation?
First of all, you have to prove the statement was an intentional misrepresentation or lie. With slander (verbal defamation,) things get a little tricker. Of course, a key portion is that you have to prove – beyond a reasonable doubt – that this person actually said what you’re claiming they said.
The trickiest part for libel lies in the second portion: proving that the defamatory statement was intended with actual malice. An untrue statement, to be considered defamatory, needs to be said with the intentional misrepresentation of facts with the intention to cause you harm. IE: The person needs to be knowingly lying while knowing this lie will cause you harm.
Most lawyers will tell you this is the most challenging part of the process. First, understand that there is a clear difference between a statement having the potential to cause you harm and a statement actually causing you harm.
It is only considered defamation of character if the statement has caused you harm already, not if it has the potential to cause you harm. This is a tricky line to walk for the court and a frustrating one for many people who are looking to prevent damage. But the court cannot act on something that might happen unless there’s proof that something has already happened. IE: if you’ve already seen negative effects, you’ll likely see more if this went unchecked. If you haven’t, there’s a chance you may never see any negatives as a result of the slander or libel.
In order to win the claim, you are going to need to prove that the false statement has ruined your reputation. If you are a business owner, for example, you would need to prove how the statement has had a devastating impact on your business.
If you are the only one who knows about this lie, it doesn’t count as slander, libel, or defamation since it can’t hurt your reputation. Unless there’s the threat to release this information, which would count as blackmail.
The interesting thing to note about publication is that it’s not in the modern context, where it’s been published. It just means that it was done in a way where other people heard, saw, read, or otherwise came across this harmful lie about you. IE: it was public in some way where a third party was exposed to the statement.
This could be untrue and damaging images, articles, emails, or other written communication that was shared with more people than just yourself (libel.) Or it could be gestures, spoken words, or something else not otherwise in a tangible form that was done in front of – or towards – other people about you (slander.)
On top of this, the statement must also be considered “unprivileged.”
Privileged Versus Unprivileged Speech
Since free speech and defamatory cases seem to be on conflicting sides of the constitution, the court decided to protect certain scenarios and interactions from being brought to court on defamation suits. These protected scenarios and interactions are called “privileged.”
They include scenarios in which false statements can cause you harm, such as witnesses who falsely testify. Most lawmakers also fall into this “privileged” bucket in the legislative chambers and in official documents and material.
That’s not to say that these statements can’t face legal action, just that “privileged” statements cannot be considered defamatory. Even if they are otherwise. Fortunately, unprivileged statements cover the majority of defamatory statements. These are the kinds of statements that are made in everyday life, online, and outside of the courtrooms and chambers.
Dealing With Slander, Libel, & Defamation
When libelous and slanderous statements are made in public, the affected party should seek a retraction before filing a complaint in court. If there is evidence of the alleged defamer refusing to retract the statements, it would be easier to win the case in court. But what does “winning” a defamation case look like?
For compensation, the court must decide on the amount of “reasonable of injury.” For example, if a politician feels defamed by statements that attempt to connect her with criminal organizations, the court will consider that people in the public eye should expect that sort of circumstance. This damage would likely be considered lesser – if damaging at all.
In most cases involving defamation of character, the court will seek a resolution that is both uncomplicated and respectful of the First Amendment. This could mean accepting a retraction from the respondent published in the newspaper of record.
If you think you have a case and would like to take action, we have some articles and resources to help you take the next steps:
- When to Sue for Defamation, Slander, and Libel
- How To Sue Someone For Slander
- How to File Internet Libel Lawsuits
- Using a Cease and Desist Letter to Stop Slander and Libel
A Real-Life Defamation Of Character Case
In 2017, actress Rebel Wilson was in a defamation of character case. After the release of the hit movie she co-starred in, Pitch Perfect 2, a media company (Bauer Media) published several articles about her. They stated she was “a serial liar” and “fabricated almost every aspect of her life.” Bauer Media continued to accuse her of lying about her “age, upbringing and the origin of her name,” according to The Washington Post.
Because of the blatant dishonesty of these statements, Wilson was able to easily prove they were untrue. However, proving Bauer Media had the intention of causing her harm, as well as proving that they actually caused her harm was less black-and-white.
Wilson stated that the claims not only hurt her reputation but caused her to be overlooked for acting roles and lost her money. After uncovering the source of the false information, it was brought to the court’s attention that the source was paid and had a grudge against Wilson. It was also discovered that the claims were intentionally published around the same time Pitch Perfect 2 was released to attract timely attention.
Wilson was awarded more than $3 million in damages. On the day of the verdict, she Tweeted, “Today was the end of a long and hard court battle against Bauer Media who viciously tried to take me down with a series of false articles.”
You can also have a look at how to prove workplace discrimination.