How does libel law work?

What Michele Bachmann did, if anything, was slander, which is spoken defamation of character. Libel must be published.

“1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

In the context of defamation law, a statement is “published” when it is made to the third party.”

This article goes on to answer many of your other questions.

Interesting question. But here’s how it could play out in the real world:

1. No one can prove a negative. So it would be impossible for Merck to prove “our drug does not cause mental retardation”. If they elected to bring suit against Ms. Bachmann for defamation (because it’s the company and its product that have been “defamed”; I think that slander also applies only against living people) then all they could do is attempt to prove by preponderance of the evidence that their drug has been fully tested and found to be safe and effective. That’s “relatively” safe and “relatively” effective, because nothing is 100%.

2. Merck, a global pharmaceutical giant, would file suit against Ms. Bachmann, “a servant of the people” regarding the defamation. They would demonstrate the rigorous testing that their vaccine (and its delivery system) were required to undergo in order to satisfy the FDA of the efficacy and safety of the drug system. Naturally, they would take particular pains to demonstrate “safety”. They would probably do an excellent job of this.

3. In order to counter their evidence, Ms. Bachmann would be required to produce her proof – and it is doubtful that she would do this. If her claim is fraudulent, and the person never existed, then she could claim to “protect her privacy” and refuse to produce the witness / victim on those grounds. If the person really does exist, then she could make the same claim.

4. Either way she fails to produce a “victim”, she would lose the case. She would lose a defamation case to a *giant international pharma corporation”. How would that play out in Minnesota and around the country? If the victim exists and volunteers herself to the court, then the trial could still go either way. Merck could feasibly lose the case.

5. If Merck were actually awarded money damages – which is doubtful in any case – then Ms. Bachmann would not only be a hero for having stood up to “giant pharma” and protecting “the little people”, but she would be a martyr besides.

Merck can’t win this case. As in the movie Wargames (remember that?): “The only way to win is… not to play.”

the outcomes depends entirely on the skill of the lawyers, and the bias of the judge.

First, it is a pernicious myth that one cannot prove a negative. There are various ways of proving negatives, such as by modus tollens or proof by contradiction. This is why we know there are no square circles or integers greater than zero and less than one.

Second, the standard of proof required by a court is lower than the standard of proof required by, say, a Pyrrhonian skeptic. So even if it were impossible to prove a negative to the satisfaction of the latter, it could still be possible to do so to the satisfaction of the former.

Third, Bachmann’s statement does not necessarily require those suing her for defamation to prove that the HPV vaccine never causes mental retardation. Any competent lawyer would carefully comb all of her various statements on this matter in search of a comment that is still defamatory while not as difficult to disprove.

Fourth, Bachmann would likely be sued in a state where truth is an affirmative defense against defamation charges, meaning that it would then be up to Bachmann to prove that her statements were true (or else she’d have to try a different line of defense).

In the end, however, @CWOTUS is correct that a lawsuit simply would not accomplish enough for it to be worthwhile for Merck. They don’t need Bachmann’s money, winning a lawsuit won’t convince anyone that their vaccine is safe, and there are much less costly ways of getting the truth out to the public. Indeed, Bachmann’s comments have given them a free outlet for publicity as their experts go from news show to news show explaining how what she said was false.

@SavoirFaire , I am interested in your fourth point. Does the matter of which side the burden of proof lies with differ from state to state?

@LostInParadise Yes and no. An affirmative defense is one the defendant must prove. I can’t just plead self-defense to avoid a murder charge, for instance; I have to offer evidence that I was in enough danger to warrant a lethal response. I’m still innocent until proven guilty—the defense still has to make its case—but I am taking on a burden of proof of my own by claiming that my actions were legally justified.

This means that both sides have a burden of proof to meet. If I cannot meet that burden, the jury will not be allowed to consider my claim of self-defense when deliberating. So if the prosecution makes has made its prima facie case—meaning it has met its burden of proof— then I am likely to be found guilty. A prosector or plaintiff, then, always has a burden of proof (thus the “no” in my “yes and no”). But the defendant can take on a burden of proof in certain circumstances (thus the “yes” in my “yes and no”).

Is that a helpful/comprehensible response?