# slander? or..... **URL:** \ **Category:** Factual Questions\ **Created:** [October 28, 2001, 4:56am UTC](https://boards.straightdope.com/t/slander-or/90069 "2001-10-28T04:56:42Z")\ **Posts on this page:** 10\ **Page:** 2
**Author:** ![Scarlett67](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/scarlett67/32/7387_2.png) [@Scarlett67](https://boards.straightdope.com/u/Scarlett67)\ **Post date:** [October 29, 2001, 3:28pm UTC](https://boards.straightdope.com/t/slander-or/90069/21 "2001-10-29T15:28:28Z")
Here’s a question: In a defamation case involving a private person, who has the budren of proof as to the truth of what is being said? Here’s a situation I was in: I was a customer in this person’s place of business, and I was telling people how that person had spoken and behaved toward me (extremely crudely, vulgar and shouting, unprovoked) in the course of my visit to his business. The only witnesses were his employees, who may also have been family members. He found out I was telling people about the incident and threatened (probably just shooting off his mouth) to sue for defamation. Granted, my reason for telling people was to hurt his business, as no one who was in a position to use his service would want to be treated that way and I wanted to prevent others from having my upsetting experience there. Would that have been considered malice, and would it have been applicable? And since I was telling the truth about what happened, would I have had to try to prove it, or could he have won by getting his “witnesses” to lie about what they saw? (I’m not seeking legal advice, as nothing ever came of this, and it was several years ago. But I’m still curious about what could have happened. I’m in WI.) ---
**Author:** ![DPWhite](https://avatars.discourse-cdn.com/v4/letter/d/d26b3c/32.png) [@DPWhite](https://boards.straightdope.com/u/DPWhite)\ **Post date:** [October 29, 2001, 5:31pm UTC](https://boards.straightdope.com/t/slander-or/90069/22 "2001-10-29T17:31:20Z")
Scarlett, I don’t know WI law, but from what you have told me, the guy and his family were liars and would have exaggerated what you said in court had the guy sued and you would have had a tough time of it. He has the burden of proving you said something and proving that it is false. If you assert truth as a defense, you have the burden of proving it is true. If you assert that what you said was opinion, you have that burden too. ---
**Author:** ![Otto](https://avatars.discourse-cdn.com/v4/letter/o/bbe5ce/32.png) [@Otto](https://boards.straightdope.com/u/Otto)\ **Post date:** [October 29, 2001, 7:05pm UTC](https://boards.straightdope.com/t/slander-or/90069/23 "2001-10-29T19:05:11Z")
And, to add to DPWhite’s comments, the standard of proof is “preponderance of the evidence.” ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 31, 2001, 4:16am UTC](https://boards.straightdope.com/t/slander-or/90069/24 "2001-10-31T04:16:27Z")
> [@](#): > > \*Originally posted by DPWhite \* > \*\*Scarlett, I don’t know WI law, but from what you have told me, the guy and his family were liars and would have exaggerated what you said in court had the guy sued and you would have had a tough time of it. > > He has the burden of proving you said something and proving that it is false. If you assert truth as a defense, you have the burden of proving it is true. If you assert that what you said was opinion, you have that burden too. \*\* Following on my previous post, this sounds like another difference between defamation law in the U.S. and in other common law countries. In England and in the common law provinces of Canada, the plaintiff has the burden of proving that the defendant made the statements. If the plaintiff meets that standard, the onus then shifts to the defendant to prove that the statements were in fact true. ---
**Author:** ![barbitu8](https://avatars.discourse-cdn.com/v4/letter/b/839c29/32.png) [@barbitu8](https://boards.straightdope.com/u/barbitu8)\ **Post date:** [October 31, 2001, 8:34pm UTC](https://boards.straightdope.com/t/slander-or/90069/25 "2001-10-31T20:34:19Z")
I thought the common law holds that the proponent of a position has the burden of proof. If the deft’s liability for defamation rests on his making a false statement, then the pltff would have the burden of proof of showing each and every element of his action: that the deft made the statement (and third parties knew of the statement) and that the statement is false. He has to show both elements (or all elements) to make a prima facie case. The burden of proof (or going forward with the evidence) then moves to the defendant to rebut the action. But perhaps I’m mistaken. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 2, 2001, 1:43am UTC](https://boards.straightdope.com/t/slander-or/90069/26 "2001-11-02T01:43:05Z")
**barbitu8,** you’ve stated the general rule: that the plaintiff has the onus of proof. However, it is not an inflexible rule (at least in the Anglo-Canadian jurisdictions I’m familiar with; American civil evidence may be different) Although the plaintiff generally has the burden of proof, in some cases, for certain types of actions or factual scenarios, the onus of proof may shift to the defendant. These rules for the shift in onus may in some cases be rules of law (i.e. - they apply in every action of a particular sort), or practical rules based on the facts. For example, every now and then you run into a situation where a judge will rule that something is so peculiarly within the knowledge of the defendant (e.g. - possession of a licence of some sort) that the defendant can reasonably be required to prove that fact. Note that the burden of proof can be more flexible in civil matters because it is two private parties squaring off, rather than the state prosecuting an individual, and there is no risk to the liberty of the unsuccessful party. With respect to the particular example of defamation law, Anglo-Canadian law uses a shifting onus. The plaintiff must prove that the defendant made the statements. If the defendant’s position is that the statements were true (the defence of “justification” in libel/slander lingo), then the defendant has the burden of proof. For example, see _Halsbury’s Laws of England_, 4th ed., Vol. 28, para. 16: > [@](#): > > **Falsity and Malice.** In an action for libel and slander it was formerly the practice to allege in the statement of claim that the words were published falsely and maliciously. However, the plaintiff does not have to prove falsity or malice to establish his cause of action. If the words are defamatory, the law presumes that they are false, and it is for the defendant to plead and prove that the words are true. **In other words, the onus of proving justification is on the defendant.** In a way, it’s sort of like a presumption of innocence in the civil context: the law assumes that people are good and reputable, and someone who asserts the contrary has to be prepared to put up or shut up. With the advent of the _Canadian Charter of Rights and Freedoms,_ there were attempts to have the Canadian courts follow the US example and hold that the plaintiff had to prove the statements were false, but the courts rejected those constitutional challenges. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 2, 2001, 2:34am UTC](https://boards.straightdope.com/t/slander-or/90069/27 "2001-11-02T02:34:05Z")
The reason why a non-public figure defendant has the burden of proving the truth of any defamatory statements is quite simple: truth is, at common law, an _affirmative defense_ to defamation. At one point, the defense didn’t even exist–I think it was John Adams who first got it recognized here in America. If I recall my First Amendment law correctly, however, the falsity of the statements is a necessary part of a public figure plaintiff’s case. In other words, Bill Clinton has to affirmatively show that he didn’t murder those sixty people if he wants to recover for Jerry Falwell’s libel. If Clinton doesn’t produce evidence of falsity, Falwell can just sit back and wait for the court to dismiss the case. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [November 2, 2001, 2:37am UTC](https://boards.straightdope.com/t/slander-or/90069/28 "2001-11-02T02:37:56Z")
follow-up question: **minty,** do I understand you correctly that a public figure plaintiff has to prove both malice on the part of the defendant, and the falsity of the statement? and that a private plaintiff does not have to do either? If I’ve summarised it correctly, is all that derived from the 1st Amendment, from statute, or from common law? And is there much variation from state to state? ---
**Author:** ![DPWhite](https://avatars.discourse-cdn.com/v4/letter/d/d26b3c/32.png) [@DPWhite](https://boards.straightdope.com/u/DPWhite)\ **Post date:** [November 2, 2001, 2:43am UTC](https://boards.straightdope.com/t/slander-or/90069/29 "2001-11-02T02:43:12Z")
Some interesting twists that make defamation law a bit different than other kinds of torts, statements can be libel or slander per se (at least in Caifornia). This means that it hurts someone’s professional reputation, accuses them of a crime, having a communicable disease or unchastity (in women). This means that in addition to all the other shifting above of burdens, that the plaintiff does not have to prove that the public thinks less of them and in a monetary amount. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 2, 2001, 3:08am UTC](https://boards.straightdope.com/t/slander-or/90069/30 "2001-11-02T03:08:28Z")
> [@](#): > > \*Originally posted by Northern Piper \* > **minty,** do I understand you correctly that a public figure plaintiff has to prove both malice on the part of the defendant, and the falsity of the statement? and that a private plaintiff does not have to do either? You got it. I think a few states may require private figures to prove falsity as well, but that’s not the majority position. And all public figures have to prove “malice” (i.e. knowledge of falsity or reckless disregard) and falsity as part of their affirmative case. That’s because . . . > [@](#): > > If I’ve summarised it correctly, is all that derived from the 1st Amendment, from statute, or from common law? All the public figure/public official stuff is based on the First Amendment, as interpreted by the Supreme Court in a line of cases starting with [New York Times v. Sullivan](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=376&invol=254). The remainder is largely state common law, with some state statutory and constitutional considerations tossed in for good measure here and there. > [@](#): > > And is there much variation from state to state? Different courts and different facts often lead to different law. For most practical purposes, however, defamation law is pretty consistent across the various jurisdictions of the United States. Hope that helps! [Previous page](https://boards.straightdope.com/t/slander-or/90069.md?page=1)