How Do You Prove Libel and Slander?
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UPDATED: Jul 15, 2021
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Libel and slander are both types of defamation – falsely conveying a very negative impression of another person or business.
For example, if Lindsay says Joe is a convicted criminal, or is dishonest, or deals in stolen and defective merchandise, or spreads syphilis, that certainly could create a negative impression about Joe. But unless Lindsay’s statement was false, it’s not defamatory, no matter how much it may hurt Joe’s feelings, or harm Joe’s reputation or business. True statements are protected by the First Amendment’s right to freedom of speech.
Even if Lindsay had cast her statement as her opinion rather than fact: “I think Joe spreads syphilis,” that wouldn’t shield Lindsay. When statements of opinion may be reasonably interpreted as stating actual facts, they are treated just like any other defamatory statement.
So what’s the difference between slander and libel? If the defamatory statement is spoken – such as in a conversation with friends, in a speech before an audience, or on radio or TV, it is called slander. Libel refers to defamatory statements made in writing, whether in a letter, newspaper, or book – or in an email or on a website.
Just because somebody made a false statement that created a negative impression about you does not mean you are likely going to become rich suing for slander or libel. In most circumstances you’d have to be able to prove that you or your business suffered actual financial harm as a result of the libel or slander.
To collect punitive damages, you also will likely have to prove the defamatory statement was made with actual malice – in other words the person making the knew it was false, or showed reckless disregard for the truth. Those things can be very difficult to prove. And some defamatory statements, such as those made during legislative debate, or in court papers – are absolutely privileged. Political figures and those involved in public debate have an especially high hurdle so that the threat of defamation suits does not have a chilling effect on free speech rights.
As libel and slander cases are usually difficult and expensive to handle, very few lawyers take them on, and fewer still would think of doing so on a contingency fee basis.