How Do You Prove Slander?

“Defamation of character” is the umbrella term for any statement that is damaging to a person’s reputation. 

While written defamation is known by the legal term "libel," spoken defamation is called "slander." 

Defamation is a "tort", meaning it is a civil wrong, rather than a criminal wrong, so a person who has been defamed can sue the person who defamed them. 

Defamation law varies depending on the state you’re in, however, there are some general rules of thumb that are accepted. 

The "statement" can be spoken, written, pictured, or even gestured. 

Written statements are more permanent than spoken ones, and as a result, most courts, juries, and insurance companies consider libel more harmful than slander.

How do you prove slander

If you believe you are have been "defamed," to prove it you’ll have to prove that a statement is:

  1. Published 

‘Published’ in this context means that a third party - someone other than the person responsible for the statement or the person the statement was about - heard or saw the statement, so in the case of slander, somebody else will have had to have heard the defamatory statement being said.

‘Published’ doesn't refer only to publication in a book - it can be anywhere that is public, from television, to a speech to radio, or in today’s world, social media, which crops up regularly in modern libel cases. 

  1. False

If a defamatory statement isn’t false, it's not considered damaging. This can mean that even the most vicious statements may not be defamatory if they’re true.

You might be wondering about opinions. As most opinions can’t be proven to be objectively false, most can’t be considered defamatory.

So a negative book review isn’t defaming the author, because no one can prove that the statement is objectively false.

  1. Injurious

Defamation law is in place to take care of injuries to reputation, so those suing for defamation must prove that their reputations were hurt by a false statement.

This could be in the form of lost work, being shunned by friends and family, or hounded by the press. 

For this reason, a person who already has a bad reputation won’t collect much in a defamation suit.

  1. Unprivileged

In order for a statement to be considered defamatory, the offending statement must be "unprivileged." 

There are some circumstances under which you cannot sue someone for defamation even if they make a statement that would otherwise be considered objectively false. 

The reason for these exceptional circumstances being considered "privileged" is because lawmakers consider free speech to be so important that speakers should not feel constrained by fear of being sued for defamation. This privilege also applies to the lawmakers themselves. 

Is it defamation if it is true?

In order for somebody to prove that a defamatory statement has been made about them, that statement must be proven to be true. 

Truth is considered an absolute defense to defamation, so if the statement was accurate, then it isn’t considered defamatory.

There are a few other common defenses in defamation cases. These include: 

  • The allegedly defamatory statement was a statement of opinion
  • Consent was given for the publication of the allegedly defamatory statement
  • Absolute privilege
  • Qualified privilege
  • Retraction of the allegedly defamatory statement

The statement can be considered an opinion

Defamation is a false statement of fact, so a statement of opinion cannot be considered defamatory. 

That said, just because you phrase a statement as an opinion does not automatically mean that it will be interpreted as one.

In a defamation lawsuit, a jury will look at several aspects of the uttering of the defamatory statement:

  • These will include how well you knew the person you allegedly defamed, 
  • how well you knew the person you said the allegedly defamatory statement to, 
  • how precise the allegedly defamatory statement was, and 
  • why you made that statement in the first place

The jury will consider these four points, and, if they believe that you were making a statement of fact that was disguised as a supposed statement of opinion, you will be sued for defamation.

The statement was made by someone with absolute privilege

As we said, there are certain instances in which someone cannot be sued for a defamatory statement because they are considered absolutely privileged. 

Absolute privilege means that the person making the statement has the absolute right to do so, even if it is defamatory under usual circumstances. 

Those who have absolute privilege are generally exempt from liability for defamation relating to statements that are made:

  • during judicial proceedings
  • by high government officials
  • by legislators during legislative debate
  • during political broadcasts or speeches, and
  • in between spouses

The statement was made by someone with qualified privilege

There may be some instances in which a statement can be made under qualified privilege, meaning that the person making the allegedly defamatory statement may have had some right to do so. 

In such cases, the person suing for defamation must prove that the person who made the defamatory statement acted intentionally, recklessly, or with malice, hatred, spite, ill will, or resentment. 

Some statements for which qualified privilege applies include: 

  • statements made in governmental reports of official proceedings
  • statements made by lower government officials such as members of town or local boards
  • citizen testimony during legislative proceedings
  • statements made in self-defense or to warn others about harm or danger
  • certain types of statements made by a former employer to a potential employer regarding the employee, and
  • published book or film reviews that constitute fair criticism.

The allegedly defamatory statement was retracted

If the defamer retracts the allegedly defamatory statement, this will often be considered a defense and will be further helped if an apology is made by the alleged defamer.