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, defamation can either be classified as a civil or a criminal offense. This means a defamer may be liable only to the extent of the damages caused to the injured person or can be prosecuted criminally for acts of defamation. 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 Defamation How to prove…
The text or comment is untrue You have to show proof that the author has said or written something about you that is unfounded.
It was stated as a fact You 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 party There 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 intent The 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 person A 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 damages You 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 case, demand retraction, warns against any impending statements, in accordance with the law.

All you need to do is:

1. Search Defamation 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?

DoNotPay doesn’t just stop at helping you write cease and desist letters. The AI-powered robot lawyer helps with day-to-day issues such as cancellation of subscriptions, tax exemptions, appealing of parking tickets, and so much more with just a few clicks! 

Take a look at what else we can offer:

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