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How Does a Person Prove Defamation Occurred?
As you might expect, the law of defamation varies from state to state, but there are some generally accepted rules. To prove you have been “defamed,” you will be required to prove the following about the statement(s):
- the statement was published
- the statement was false
- the statement injured your reputation
- the person defaming you had no legal excuse or privilege to defame you
Let’s look at each of these elements in detail.
- First, the “statement” can be spoken, written, pictured or even gestured. Because written statements last longer than spoken statements, most courts, juries and insurance companies consider libel more harmful than slander.
- “Published” means that a third party heard or saw the statement — that is, someone other than the person who made the statement or the person the statement was about. “Published” doesn’t necessarily mean that the statement was printed in a book — it just needs to have been made public through television, radio, speeches, gossip, social media, email or even loud conversation. Of course, it could have also been written in magazines, books, newspapers, leaflets or on picket signs.
- A defamatory statement must be false – otherwise, it’s not considered damaging. Even terribly mean or disparaging things are not defamatory if the “shoe fits.” Most opinions don’t count as defamation because they can’t be proven to be objectively false. For instance, when a reviewer says, “That was the worst book I’ve read all year,” she’s not defaming the author, because the statement can’t be proven to be false.
- The statement must cause injury. Since the whole point of defamation law is to take care of injuries to reputation, those suing for defamation must show how the false statement hurt their reputations — for example, the person lost work; was shunned by neighbors, friends or family members; or was harassed by the press. Someone who already had a terrible reputation most likely won’t collect much in a defamation suit, if anything at all.
- Finally, to qualify as a defamatory statement, the offending statement must be “unprivileged.” Under some circumstances, you cannot sue someone for defamation even if they make a statement that can be proved false. For example, witnesses who testify falsely in court or at a deposition can’t be sued. (Although witnesses who testify to something they knowis false could theoretically be prosecuted for perjury.) Lawmakers have decided that in these and other situations, which are considered “privileged,” and protected by the litigation privilege, free speech is so important that the speakers should not be constrained by worries that they will be sued for defamation. Lawmakers themselves also enjoy this privilege: They aren’t liable for statements made in the legislative chamber or in official materials, even if they say or write things that would otherwise be defamatory.