Defamation: Defenses to Libel and Slander

Defamation is the intentional act of telling a lie about someone else that causes harm or injury to their reputation. While the terms “libel” and “slander” are often used, we’ll cover the difference been the two types of defamatory statements and how they differ from false light claims. Common defenses are also listed, which are usually analyzed in every instance where a cause of action is based upon libel and slander allegations.

What Are the Elements of a Claim of Libel or Slander

It is important to have a good understanding of what is required to make a case for libel or slander before considering raising a defense. The easiest way to stop a defamation case from proceeding is to show that that there is no case. In order for a defamation case to proceed, it is the plaintiff who must allege and establish that all of the following elements claim for libel or slander are present:

  • The defendant made an untrue or false statement of fact (a written lie is “libel” and a spoken lie is “slander”) about another person
  • The false statement was shared with someone other than the plaintiff/defamed person
  • The false statement was or is understood to be (i) referring to the plaintiff; and (ii) would seem to harm the reputation of the plaintiff by the nature of what was said
  • The harm to the plaintiff must cause damages (harmless statements that are untrue are not covered)
  • If the plaintiff is a public figure or famous person, then the plaintiff must prove that the person making the false statement had “actual malice” (to  intentionally harm the plaintiff, not carelessly)

If the plaintiff cannot prove all of these claims in court to start a case, the court will not be able to find in the plaintiff’s favor that a case for libel or slander has been raised.

Defenses to a defamation claim

Truth

The truth is an absolute defense against a defamation action. If there was no lie or untruth, even if the statement was damaging, no defamation action has arisen. For example, if A told B that C failed her math exam, if C did fail her math exam there is no defamation claim even though A’s statement is damaging to C.

Privilege

Statements that are given a special “privilege” under law are not defamatory. An “absolute” privilege is granted to the legislature (president, governor, mayor, etc.) and those involved in judicial proceedings. Arguments made by lawyers, witness testimony in court, statements by judges on the bench are all privileged and not actionable. The news media has “qualified” privilege in order to report the news. In order to be covered by this privilege, news stories must be (i) fair, accurate and complete, (ii) without malice, and (iii) published for justifiable ends.

Opinion

A statement of opinion – as opposed to fact – is generally not one that supports a cause of action for defamation. Whether a statement is opinion or fact might depend upon the context of the statement, such as how the statement is perceived and understood by the community as a whole. Critical reviews by a movie columnist would probably be perceived as an opinion. A representation made by a public official about a private person might be perceived more as a fact than an opinion.

Fair Comments on Matters of Public Interest

This is similar to an opinion. For public matters, there is more leeway granted to those expressing their opinion that they believe damaging allegations against a person to be true. For example, comments made about believing the guilt of a governor involved in a corruption scandal.

Common Carrier.

If a company shared the statement involuntarily, such as a telephone company providing conversations or an Internet Service Provider that provided the email to make the defamation possible, that company would generally be immune from prosecution.

Consent

The plaintiff is shown to have prior consented to the sharing of the information.

Statute of Limitations

When the state law for the amount of time to bring a defamation action has expired, it is an absolute defense. Typically the time runs from the date of the publication of the statement or from when the statement could or should have reasonably been discovered by the plaintiff.

Prior Bad Reputation

If the plaintiff/defamed had a bad reputation in the community before the defamation occurred, it can be shown that damages to the plaintiff were minimal. If the plaintiff was already convicted several times of money laundering, an additional defamatory claim might not be nearly as damaging as one made against a person who has never been convicted of a crime.

Supreme Court Ruling Regarding the Press

In 1964, The United States Supreme Court made a landmark decision in New York Times Company v. Sullivan, which gave the press expanded protection from libel actions. In order to protect the free flow of speech and opinion, the Sullivan ruling required famous people or “public figures” must prove in an action for defamation that a publisher of news acted with “actual malice” or a reckless disregard for the truth. This provides the press with greater liberty to write stories and news about public officials, celebrities, and famous people without the fear of being prosecuted except for more severe misconduct.

“Public figures” does not necessarily mean famous celebrities – it can also include regular people who have been thrust into the public eye. For example, people who are accused of high profile crimes (murder, fraud and Ponzi schemes such as Bernie Madoff) can suddenly become public figures and the press will have expanded protection to publish articles about and concerning them.

Michael M Wechsler, Esq.

Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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