Suppose that one day a rumor goes around that John Doe is an embezzler and has a lot of guilty money to his name this way. Sally goes around spreading the rumor. Now, if John sues her for libel/slander, to what extent does she have to bear the burden of proof of her claim to not lose such a lawsuit?
Now, what if (considering a couple of variations):
What if John Doe is, in fact, an embezzler, but Sally just has no proof of it? Is she still guilty of libel/slander since she can’t prove her claim?
To take things even further, what if John Doe did in fact one day tell Sally “I used to be an embezzler” and she spreads the rumor, is she guilty of slander/libel if she passes this on? (is there a difference between “John told me he was an embezzler” - which is true - versus “John is an embezzler”, which is slightly different?)
If the rumor spreads and spreads, are people guilty of libel/slander if they just pass on what they were told? (“Bridgette told me that Amy told me that Sally told her that John…”)
(not a lawyer) This depends on factors not mentioned in the OP.
Basically, to win, John has to show that Sally made a statement of fact (not an opinion - “Seems to me he’s acting like an embezzler”), that implies not disclosed facts (If Sally says “I’ve see the company’s books; John’s an embezzler” she’s in a lot worse trouble than if she says “Based on what the papers say, John’s an embezzler”), which is not true (if Sally has a copy of the company’s books, and they show fishy numbers, she may be okay - even if Jim, John’s partner, turns out to be the real crook), and which degraded John’s reputation (if his reputation already is awful, or no one believes Sally at all, Sally’s in the clear). So Sally has a bunch of ways to not be liable – truth being one of those ways. There are lots of other factors too, I think - but remember, I’m not a lawyer.
Sounds like an unusually defendant-favoring situation. What if Sally randomly goes around on Facebook saying “John is a rapist” but with no more specifics - how is John supposed to prove he’s never raped anyone in his life? You can’t prove a negative.
ETA: wow, that’s an ugly url. I’m surprised the board doesn’t auto shorten it. I’m on my phone, and doing the code for a link is hard, so I guess it will just be ugly.
In a civil suit, you can depose the defendant, and call them to testify. You can show that Sally had no basis for what she said. Then it’s pretty much up to Sally to show that what she said was still true. You can prove, in the legal sense, that a statement was false, even if it involves proving a negative.
That statement might be considered to imply undisclosed facts - so Sally could be sued, and if she couldn’t prove some reasonable basis for her claim, she could be found liable.
[quote=“ThisIsTheEnd, post:2, topic:918600, full:true”]
Burden is on the plaintiff. [/quote]
I don’t think that’s true.
There are various defenses possible in libel / slander. One is “justification”, i.e. that the statement is substantially true. If Sally relies on this defense it is up to her to prove the allegations.
It is, however, not a criminal trial. Sally doesn’t have to prove her claim beyond all reasonable doubt, she has to show the preponderance of the evidence.
Note that when Elon Musk was sued for calling someone “pedo guy” Musk’s defense didn’t try to prove his statement was true - they represented it as a joking insult not seriously meant - and Musk won. Truth is a defense - but you don’t need to prove truth in order to defend against a libel claim.
Also consider that such a claim would fall under libel per se which means the person claiming they were libeled does not need to prove damages in the civil suit. Damages are assumed due to the nature of the accusation. The person making such a claim is taking a bigger risk doing so.
I presume when it comes down to an actual court case, then both sides can depose each other. So Doe can ask Sally (under oath) why she said that, what grounds she has for believing it. But… Sally can the depose John Doe and ask about the curious incident of the missing $50,000 last year, and perhaps even get a look at the company books to verify this. (IANAL, not sure how much a company has to cooperate with someone else’s lawsuit).
So it’s basically the “Oscar Wilde Principle”, don’t sue if you are in the wrong.
My specialty is Bird Law, but you’d be surprised how often that overlaps with libel and slander cases.
John Doe is not an embezzler unless it is proven. That’s the whole point. Sally loses, assuming John Doe can prove he was damaged by the claim.
First John Doe has to established that he was harmed by Sally saying that he said he was an embezzler. If he proves that then Sally still needs credible evidence that John Doe said he was an embezzler. Her word may be sufficiently credible. This hypothetical lacks sufficient detail to evaluate fully. I don’t think he-said/she-said type will amount to anything. If Sally says John Doe said he was an embezzler in regards to a specific case of embezzlement then it’s a different matter.
Nope, Nobody is claiming to know the truth of the matter. It might be different if Bridgette just made it all up and John Doe brought Amy and Sally to court to testify that they never said those things.
The important parts here in the US are proving that John Doe was damaged by someone’s statements, and those statements aren’t true.
IANAL, but what I remember from taking mass comm law is that, yes, truth is a defense, but she might need evidence to support her claims or at least explain why she passed the rumor along as if it were fact. Once someone is defamed and can calculate damages, the burden of proof actually shifts back on the defendant.
It depends on what the statutory provisions are, but damages are typically calculated and factored as part of the requested for compensatory purposes. Some states have punitive damages.
That makes sense. The standards for per se libel have shifted over time (an accusation of being gay is no longer per se libel, if I understand correctly), but embezzlement is still a bad thing.
One of the things libel per se (per se libel?) covers is:
“falsely claim that the person committed a crime of moral turpitude”
There was certainly a time when being accused of being gay would fit in to that. Andy L suggests it no longer applies and I would agree with that although it raises interesting questions about who is deciding these things.
What if I live in an area/do business with a bunch of folks who would view an accusation that I am gay as a “crime of moral turpitude”? Is that enough? (I have no idea)
If there is a GQ answer to that I’d love to hear it but I suspect this may be straying into GD territory.