The Burden of Proof in Defamation Cases

Defamation Demand Letters The Burden of Proof in Defamation Cases

The Burden of Proof in Defamation Cases

There may be many intermediaries to a defamation case, but only two parties are of paramount importance in the eyes of law — the actual author of the defamation and the individual or group targeted by the defamation.

The burden of proof — which is the responsibility to provide evidence that proves the act of defamation — usually lies with the party who believes they have been defamed and seeks redress in court.

This article will explain what constitutes defamation, how to prove your claim, and how to ask the defamer to apologize and issue a retraction without going to court. 

What Is Defamation?

Defamation is a spoken or written injurious remark capable of demeaning a person’s reputation or causing them various kinds of economic and non-economic losses. When spoken or gestured, it is called slander. When in a written form, it is referred to as libel.

Depending on the state you live in and the type of defamation it is, defamation can either be classified as a civil or a criminal offense. Typically, it will only be classified as a civil tort. Either way, the first step is to prove the act of defamation.

How to Prove Defamation?

The table below outlines five elements required to prove defamation:

Element of DefamationHow to prove...
The text or comment is untrueYou have to show proof that the author has said or written something about you that is unfounded.
It was stated as a factYou also have to prove that the defamation appears as a fact and not a mere personal opinion.
It has been heard or seen by a third partyThere have to be persons other than the defamer and the person who has been defamed that knows about the content of the defamation.
The author acted negligently or with malicious intentThe author was reckless to have made the comment or write-up public without proper verification.

For the intent of malice, you would have to be a public figure to be mandated to prove that.

The author is not a privileged personA privileged person is shielded from defamation lawsuits in the eyes of the law.

This includes persons like judges and top politicians.

It has caused significant injuries or damagesYou have suffered quantifiable and ascertainable losses on account of the defamation published.

Two Types of Defamation

Defamation per se

In defamation per se, you do not need to prove damage done to your reputation. A person who has been falsely accused of having a highly transmissible disease is a victim of defamation per se.

Defamation per quod

In defamation per quod, it is not clear to see how you have been injured by defamation at a glance and you’ll have to show specific evidence to prove injuries sustained.

How to Tackle Defamation

There are two steps to take to tackle defamation:

  1. Confrontation – This means contacting the defamer and compelling them to desist from further defamation and issue a retraction or apology. This is the first step for when you have a relatively close relationship with the defamer, such as a colleague or a person you know personally.
  2. Sending a cease and desist Letter – A cease and desist letter is recommended when you do not wish to confront your defamer or escalate to court. It helps you express your intention to sue and demand a retraction from the defamer. DoNotPay can help you create a tailor-made cease and desist letter in seconds!

Use DoNotPay’s Cease and Desist Letter to Tackle Defamation

DoNotPay is the perfect, convenient solution! The cease and desist letter DoNotPay drafts will detail the information about the situation, demand retraction, and warn against any impending statements.

All you need to do is:

1. Select the Defamation Demand Letters service on DoNotPay.

2. Tell us about your situation:

  • Were the statements slander or libel?
  • What were the statements?
  • Why are they false or misleading?
  • What consequences have you suffered as a result of these statements?

3. Based on your location, DoNotPay will immediately generate a formal demand letter on your behalf, with the most relevant state legislation regarding defamation.

What Else Can DoNotPay Do?

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