Slander? Prove It: Why a Two Hundred-Year-Old Defamation Law Should Be Changed

Abstract

To anyone unfamiliar with defamation law, a plaintiff with eyewitness testimony and recordings of a defendant maliciously disparaging the plaintiff’s professional reputation would appear to be poised for an easy victory in court. However, to a person familiar with defamation law, the defendant would be poised for the easy victory where the testimony and recordings were from undercover investigators sent by the plaintiff to gather evidence for a lawsuit.

Slander may seem like a quaint concept in today’s fast-paced, high-tech world, but word-of-mouth publicity and personal recommendations are still the best advertising, so slander of a person’s professional reputation can have an enormous impact on his business. Under current defamation law a plaintiff with definitive proof that a defendant slandered his professional reputation will lose his defamation case if the definitive evidence was obtained by an undercover agent sent to the defendant with the intent of bringing suit on the defendant’s disparaging statements. This result denies the plaintiff a legal remedy and allows the defendant to avoid accountability.

This defamation law is rooted in English cases decided around the beginning of the nineteenth century. However, England abandoned the law in 1849. America should follow England’s lead. Although suggesting that courts ignore two-hundred years of precedent may seem presumptuous, an unsound and unjustified rule should not continue just because it has always existed in American jurisprudence. Therefore, defamation law should be changed to allow actions based on evidence obtained by undercover investigators sent by the plaintiff to obtain evidence for the lawsuit.

Keywords: slander, defamation, defame, libel, reputation, professional reputation, England, English, undercover agent, eyewitness, agent