Defamation -- who has burden of proof, and what can that proof be?

Factual Questions
1

This question (triggered by the section on defamation in the chapter I’m copyediting today)is in regard to something that happened to me a few years ago. Someone threatened (to another person, not to me, and was likely just making noise) to sue me for defamation. Nothing came of it and the incident is over. But in the process of learning about the law in case I would need to defend myself, I had one question left unanswered. I don’t want to get into the sordid details, but here are the stripped-down basics:

The supposedly “defamatory” things I was saying about this person were absolutely true. I was telling people how he had behaved toward me (extreme [for the situation], unprovoked verbal abuse) at his place of business. The only witnesses were me, him, and three of his employees who may or may not have been family members.

As I understand it, truth is an absolute defense to defamation. But (1) who has the burden of proof, and (2) what must be proved? I reiterate, this is all water under the bridge – I’m not trying to get free legal advice, because this is long over with. But had this gone to court, would I have had to prove what he said and did? (Rather difficult, with no witnesses of my own, and no tape recorder in my pocket.) Or would he have had to prove that he did not? (Would “his” witnesses have lied for him, or distorted the story? Possibly, I think. Would their testimony have been considered proof?) Does it make a difference that he might have suffered a slight loss of business as a result of what I said? (I will admit that that was my goal in spreading the story – believe me, if you knew the details, you wouldn’t go to him for his “service” either.) Yes, if people knew about his behavior, of course, it would “be injurious to his reputation” – the way he behaved, I would hope so! What was my risk of getting in trouble for telling the truth?

[sub]God, it’s been a few years now and I still get a little shaky just thinking about the incident. Does that give you an idea how upset I was?[/sub]

Again, I’m just curious what any of our legal eagles have to say about this specific issue of proof. (At the time, I did consult both my own lawyer and a few at “ask the expert” Web sites, but none of them really addressed this point specifically. I also waded through a bunch of court cases, to no avail.)

2

Scarlett, the freedom of speech interests protected by the US Constitution are implicated in defamation cases, and courts tread very carefully to avoid sanctioning a person for protected speech. Because of the constitutional implications, the law of defamation in the US is complicated, and the elements of a defamation claim and the permissible defenses and burdens of proof vary, depending upon the status of the plaintiff (a public figure has less protection than a private one), the defendant (the media has elevated protection), and the subject matter (policital speech has the highest protection; matters purely private have the lowest). That said, in Michigan the general elements of a claim of defamation are: (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher, and (4) either actionability of the statement regardless of special harm or the existence of special harm caused by the publication. The elements vary according to the factors I previously mentioned, so, for example, a public figure plaintiff asserting defamation must show that the publication was a defamatory falsehood and that it was made with actual malice through knowledge of its falsity or through reckless disregard for the truth.

Now, as to the burden of proof: the party asserting a claim - the plaintiff - has the burden of proof. The plaintiff must show all the elements of a claim, and the general civil burden of proof is by a preponderance of the evidence. Again, in defamation cases this standard varies, and so a public figure plaintiff must show the elements of his claim by clear and convincing evidence.

Generally, a defendant has no burden of proof, since he is not asserting a claim. You’ll notice that one of the elements of a defamation claim is that the statement was false. As a practical matter, a defendant will routinely present evidence to show the truth of an assertion, to prevent the plaintiff from convincing the factfinder that he had met his burden of showing falsity, but the burden of proof remains with the plaintiff.

There are exceptions (of course :)) to the general burden of proof, such as certain affirmative defenses like, oh, release or privilege, as to which the defendant has the burden.

I hope this scratches your long-lived itch.

3

Not my area of expertise…

But as I recall, you’re quite correct that the tort defamation requires a false statement.

In general, then, to prove defamation, it must be shown that the tortfeasor made (1) a communication (2) to a third party or parties of (3) false statements about a person that (4) deter others from associating with or injure the reputation of that person.

Each numbered element above must be proven to the trier of fact by preponderance of the evidence. This is a legal standard of proof that basically means, “more probable than not.” So the plaintiff, the person defamed, has the burden of proof, and ‘preponderance of the evidence’ is the standard of proof.

If he had witnesses that could testify to the substance of the communication from you, then certainly that would be evidence. It would be for the trier of fact (the jury, or judge in a bench trial) to weigh the credibility of the witnesses and decide what actually happened.

As I say, this isn’t my area of expertise, but drawing on long-forgotten law school, I think the above is reasonably accurate. As always, this isn’t intended to be legal advice – consult a lawyer licensed to practice in your jurisdiction for that.

  • Rick
4

Thanks for your replies, Bricker and Sparteye.

I think this gets to the nugget of my question. With regard to whether he said and did what I was claiming that he said and did, it was a “he said/she said” situation. I would not have denied that I told others about what happened, but my fear at the time was that if push came to shove, he and/or his witnesses would distort or lie about the original incident – “I never did that – she’s lying!” – which could have blown the truth defense. The day that it happened, I spent the afternoon writing up a 3-page account of the incident, while it was still fresh – stating the background, exactly what was said and by whom, tone of voice, posture, gestures, etc. – in the most accurate factual terms I could muster. (That account is now on file with a state consumer agency.) I doubt that he and/or his people did the same.

This would certainly have been deemed a private dispute. He was not a public figure; in fact, I had never heard of him or his business until I was referred there for the service I needed. (Interestingly, a few months ago a friend told me that a FOAF of hers had gone to this same business for service and had a similar ugly incident. I wasn’t too surprised, but was glad for the indirect validation.)

Under the “he said/she said” circumstances, I wonder if he would have even been able to find an attorney to take the case. My lawyer friend didn’t seem to think so.