What are the steps for proving defamation of character?


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Question:

What are the steps for proving defamation of character?

Answer:

In very basic terms, defamation occurs when someone makes a false statement about you, causing harm to your reputation. Defamation can form the basis of a civil lawsuit, meaning you can sue the person who made the defamatory statement, and can recover compensation for your damages.

There are two types of defamation: libel and slander. A defamatory statement that is written or recorded would constitute libel, while one that is merely spoken would be considered slander.

So, when it comes to proving defamation, what do you need to show? Whether the defamatory statement takes the form of libel or slander, the basic elements are usually the same (although there may be variations from state to state).

The statement is false. If a statement is true, it can’t be defamatory. The other side of the coin is that the statement must be capable of being proven false. This means that most opinions -- even the meanest and most disparaging -- cannot be defamatory.  

The statement was published. This simply means that the statement was made, and was heard or read by a third party (someone other than the plaintiff). This requirement does not mean that the statement must be published in a newspaper or on the internet, although that obviously would qualify as publication.

The statement caused harm. The subject of the statement must be able to show that their reputation was harmed. In other words, what were the negative consequences of the statement? Did the person lose their job? Did they suffer harassment from neighbors or the press?

With some types of statements, harm to reputation is presumed. These include statements that impugn a person’s business or trade, and statements that falsely accuse someone of having committed a crime. These kinds of statements are considered “per se defamatory” or “actionable per se,” meaning harm is a given in the eyes of the law.

The statement wasn’t privileged.  There are a few situations in which free speech considerations win out even when a statement might be otherwise considered defamatory. Learn more about privilege in defamation cases.

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