Defenses to Libel and Slander

A defendant in a defamation case may raise a variety of defenses for libel or slander. Defamation occurs when someone publishes false information that harms another person's reputation. To understand how to defend against such charges, it may help first to familiarize yourself with the elements of libel and slander.

Common defenses to libel and slander torts (civil wrongs) are summarized below.

Truth as a Defense to Libel and Slander

The common law (law developed over history by courts) traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern defamation law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states likewise now require falsity as an element of defamation that any plaintiff—even a private individual—must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to a defamation claim (cause of action).

The applicability of the truth defense is strong against all types of defamation lawsuits, including defamation per se actions, where a plaintiff does not need to prove actual damages. A defamatory statement does not need to be literally true for this defense to be effective. Courts require that the statement is substantially true for the defense to apply. This means that even if the defendant states some false facts, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.

Consent as a Defense to Libel and Slander

When a plaintiff consents to the publication of a defamatory matter about them, this consent is an absolute defense to a defamation action.

Let's say a plaintiff claims personal injuries for defamation of character as a result of a defendant's false statement of fact about them. The defamation suit may have strong injury case evidence for harm to reputation. The defendant admits to making defamatory statements about the plaintiff on social media. But the defendant also presents evidence that the plaintiff provided permission for the postings.

Here, it doesn't even matter that the plaintiff suffered monetary damages as a result of harm to their reputation. The plaintiff gave consent to the defendant to post the false statements of fact on social media. Since the plaintiff gave permission, the defendant will have a successful consent defense.

Opinion as a Defense to Libel and Slander

The area of law concerning free speech affords strong protections to opinions. The Supreme Court has made rulings to protect the First Amendment freedom of speech, including personal opinions. A defendant can win if a reasonable person would believe that their defamatory statements were statements of opinion.

In making an opinion, a defendant should not act with:

• Reckless disregard for the truth; or
• Actual malice against the plaintiff's reputation

Take these two examples:

1. In my opinion, Alex does not always tell the truth. But I may very well be mistaken, so don't take my word for it.
2. I don't need to do any investigation to know Alex is a liar. I hate Alex. I have great intuition and I am as sure of it as the sky is blue.

In the first example, it may be clearer to a reasonable person that the defendant is providing an opinion. But the second example could amount to reckless disregard for the truth. In the second example, the defendant even admits hate and refusal to do a proper investigation.

Defamation and Absolute Privileges

Some defendants are protected from liability in a defamation action based on the defendant's position or status. These privileges are called "absolute privileges" and may also be considered immunities. In other words, the defense is not conditioned on the nature of the statement or upon the actor's intent in making a false statement.

Absolute privileges apply to the following proceedings and circumstances:

• Judicial proceedings
• Legislative proceedings
• Some executive statements and publications, such as those by government officials
• Publications between spouses, including in family law cases
• Publications required by law

Defamation and Qualified Privileges

Other privileges do not arise from the person making the communication, but rather from the occasion in which the statement was made. These privileges are known as conditional, or qualified, privileges.

A defendant must prove that it meets the conditions established for the privilege. Generally, for a privilege to apply, the defendant must believe that a statement is true and, depending on the jurisdiction, either have reasonable grounds for believing that the statement was true or not have acted recklessly in ascertaining the truth or falsity of the statement.

Conditional privileges apply to the following types of communications:

• A statement that is made for the protection of the publisher's interest
• A statement that is made for the protection of the interests of a third person
• A statement that is made for the protection of common interest
• A statement that is made to ensure the well-being of a family member
• A statement that is made where the person making the communication believes that the public interest requires communication of the statement to a public officer or other official
• A statement that is made by an inferior state officer who is not entitled to an absolute privilege

Learn More About Defenses to Libel and Slander: Contact an Attorney

If you've been sued for slander or libel, or have questions about possible defenses to such charges, an experienced personal injury lawyer may be able to assist with legal advice. Their knowledge of the law can help you cut through the “he-said/she-said" of a libel or slander case.

Similarly, if you need to sue for defamation, a personal injury attorney with experience in this field can protect your rights. Keep in mind each state has a time limit to file cases, known as the statute of limitations. Your case must be filed before the expiration.

Contact a local defamation attorney today for more information.