Slander, Defamation and proving the truth

EvaLittleThing

I'm not asking for legal advice, as the forum charter says I'm just asking forum members for their opinion which I will not regard as an expert legal one unless they explicitly state it is to be taken as one.

OK so hypothetical situation.

Elaine is verbally aggressive toward Rachel and Jacob (Rachel's Boyfriend) inside Rachel and Elaine's apartment. Rachel and Jacob are both upset by this action and tells her friends about it for the purposes of support. Elaine hears back that they have told her friends and is angry and talks to a solicitor about bringing a defamation case against Rachel.

I'd like to look at this from Rachel's point of view, what can she do to help herself.

• As far as I'm aware publication must have taken place which it has, so she can't do much about that.
  
• Rachel must have intended to cause damage to Elaine's reputation, not sure how that can be proved one way or the other.
  
• The statement must be proved true by Rachel, which leads to the following questions:
  • Would character witnesses for both Rachel and Jacob help and how would that work?
  • Would a witness who is a witness of the bad character of Elaine help?
  • Would a witness who witnessed Elaine describing the events in a similar way to Rachel help?
  • Is there any other way that her statement can be proved true?

Any other relevant information that could be provided that would affect how this case would go would be appreciated.

Procrastastudy

There doesn't need to be an intent to cause damage just that the reputation has been diminished in the minds of right thinking people.

I'm no expert, and realise this is hypothetical, but I'd be dubious about how far this sort of thing would get in real life.

Hypothetically - what was said?

Defamation Act 2009

Strawberry Fields

it isn't defamation if it's true.

coylemj

I can't see that Elaine has an actionable case against Rachel because Rachel is simply repeating what Elaine said about Rachel.

Elaine can't take an action for defamation simply because someone (Rachel) repeated something she said to a third party about Rachel.

You seem to be suggesting that the action of repeating the words constitutes defamation which it does not, it's what was said that matters and in this case it appears that as Rachel was the subject of adverse comment by Elaine in the presence of Jacob, it's Rachel who could take an action for defamation against Elaine.

Peregrinus

OK, let’s flesh this out a bit. (In a completely speculative way - I am not the OP.)

Suppose Elaine’s verbal aggression takes the form of saying to Rachel “you are a bitch and a slut, and you never do your share of the housekeeping”.

Scenario 1: Rachel then tells her friend “Elaine said I was a bitch and a slut and don’t do my share of housekeeping”. Elaine hears about this, and sues for defamation. Assuming that what Rachel has said will damage Elaine’s reputation, Rachel can defend the suit by claiming that what she said was “justified”; Elaine did say that. The onus of proof is on Rachel to show the court that Elaine said that; her evidence will be her own testimony plus the testimony of Jason, who was present at the time and heard Elaine say that. Other evidence (that Rachel is of good character and doesn’t tell lies, that Elaine is hot-headed and has a history of flying off the handle and abusing people) will be secondary to this. If Elaine denies ever having said it, the court will simply have to decide who is the more credible witness.

Scenario 2: Rachel tells her friend “Elaine went psycho and threatened me”. Now what Rachel has to show is that Elaine did in fact go psycho and threaten her. She can prove (in the same way as before) what Elaine actually said, but she’s also going to have to argue, and to get the court to accept, that “she went psycho and threatened me” is a fair characterisation of what passed. To some extent there could be evidence about this (about Elaine’s demeanour during the incident, for instance) but mainly it will be a question of the court applying community standards to determine whether what Rachel said about the incident was justified by the actual facts of the incident.

FreudianSlippers

Peregrinus wrote: »

OK, let’s flesh this out a bit. (In a completely speculative way - I am not the OP.)

Suppose Elaine’s verbal aggression takes the form of saying to Rachel “you are a bitch and a slut, and you never do your share of the housekeeping”.

Scenario 1: Rachel then tells her friend “Elaine said I was a bitch and a slut and don’t do my share of housekeeping”. Elaine hears about this, and sues for defamation. Assuming that what Rachel has said will damage Elaine’s reputation, Rachel can defend the suit by claiming that what she said was “justified”; Elaine did say that. The onus of proof is on Rachel to show the court that Elaine said that; her evidence will be her own testimony plus the testimony of Jason, who was present at the time and heard Elaine say that. Other evidence (that Rachel is of good character and doesn’t tell lies, that Elaine is hot-headed and has a history of flying off the handle and abusing people) will be secondary to this. If Elaine denies ever having said it, the court will simply have to decide who is the more credible witness.

Scenario 2: Rachel tells her friend “Elaine went psycho and threatened me”. Now what Rachel has to show is that Elaine did in fact go psycho and threaten her. She can prove (in the same way as before) what Elaine actually said, but she’s also going to have to argue, and to get the court to accept, that “she went psycho and threatened me” is a fair characterisation of what passed. To some extent there could be evidence about this (about Elaine’s demeanour during the incident, for instance) but mainly it will be a question of the court applying community standards to determine whether what Rachel said about the incident was justified by the actual facts of the incident.

Scenario 2 also has an honest opinion defence. Rachel subjectively believes that Elaine went psycho.