Basic Legal Principles

We can’t pack three years of law school into this document, but here’s an overview of some basic legal principles.

Civil law and the standard of proof

There are two main kinds of law, each with its own standard of proof.

Criminal law deals with crimes that are prosecuted by the state. Theft is a criminal charge: the police may arrest the alleged thief, the state may bring charges against them, and if they are convicted they may go to jail. In criminal law, the standard of proof is beyond reasonable doubt: “proving” something means showing it is true beyond reasonable doubt.

Civil law deals with lawsuits brought by one person against another. The police and the jail system are generally not involved in civil cases. In civil law, the standard of proof is preponderance of evidence: “proving” something means showing it is at least 51% likely to be true.

Defamation is governed by civil law, so when we talk about “proving” something in a defamation case we mean showing it is at least 51% likely to be true.

Who’s who?

In a civil lawsuit, the plaintiff is the person who filed the lawsuit.

In a civil lawsuit, the defendant is the person who is being sued. In a criminal case, the defendant is the person who is charged with a crime.

The statute of limitations

The statute of limitations puts a time limit on when criminal charges or a civil lawsuit can be filed. Different crimes and types of lawsuits have different statutes of limitations: more severe offenses generally have a longer time limit.

The statute of limitations for defamation is generally one to three years, beginning with the first publication of the defamatory statement. Republishing the same statement usually does not restart the timer: if a publisher prints a second edition of a defamatory book, the statute of limitations would be based on the first edition.

There is one important exception: the “discovery exception” means the statute of limitations might begin when the plaintiff first discovered the defamatory statement, not when it was first published.


A civil lawsuit seeks to obtain compensation for harm the defendant has caused the plaintiff. The harm that forms the basis of the lawsuit is referred to as a tort.

There are many kinds of tort—injuring someone in a car accident and saying something defamatory about them are two examples.


Different states and countries have different laws and precedents that affect how the law is interpreted. Jurisdiction refers to the location where a lawsuit will be tried, which determines the laws and precedents that will guide the trial.

Jurisdiction can be very important. If Morgan (who lives in Oregon, where the statute of limitations is one year) wants to sue you (who live in Washington, where the statute of limitations is two years) 18 months after you made a defamatory statement about them, whether the lawsuit can proceed will depend on which state has jurisdiction.

Which locale has jurisdiction when a defamatory statement was published on the internet? It’s complicated, but jurisdiction will usually be the location where the plaintiff’s reputation would be most impacted—often their place of residence.

International lawsuits

Many countries are less protective of free speech than the US: what happens if you’re sued by someone who lives in a country with unfavorable defamation laws? The SPEECH Act provides significant protection against foreign libel laws: in many cases, it makes foreign libel judgments unenforceable in US courts.

Absolute and qualified privilege

For our purposes, a privilege is a legal protection that applies to certain kinds of speech. Establishing privilege can be very important when defending against a defamation lawsuit.

A statement protected by absolute privilege cannot be defamatory under any circumstances. Truth is an absolute privilege, so a true statement is never defamatory.

A statement protected by qualified privilege may be defamatory but requires proving a higher degree of fault. Common interest privilege is a qualified privilege, so a statement protected by common interest privilege is only defamatory if it was made with actual malice rather than mere negligence. What do all those words mean? See Element Two: Fault.


This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.