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Defenses to Libel and Slander

A defendant in a defamation case may raise a variety of defenses, whether it is libel or slander. To understand how a defendant might defend against such charges, it may help to first familiarize yourself with the elements of libel and slander.

These common defenses are summarized as follows:

Truth

The common law traditionally presumed that a statement was false once a plaintiff proved that the statement was defamatory. Under modern law, a plaintiff who is a public official or public figure must prove falsity as a prerequisite for recovery. Some states have likewise now provided that falsity is an element of defamation that any plaintiff must prove in order to recover. Where this is not a requirement, truth serves as an affirmative defense to an action for libel or slander.

A statement does not need to be literally true in order for this defense to be effective. Courts require that the statement is substantially true in order for the defense to apply. This means that even if the defendant states some facts that are false, if the "gist" or "sting" of the communication is substantially true, then the defendant can rely on the defense.

Consent

Where a plaintiff consents to the publication of defamatory matter about him or her, then this consent is a complete defense to a defamation action.

Absolute Privileges

Some defendants are protected from liability in a defamation action based on the defendant's position or status. These privileges are referred to as 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 intent of the actor in making a false statement. In recognizing these privileges, the law recognizes that certain officials should be shielded from liability in some instances.

Absolute privileges apply to the following proceedings and circumstances:

    (1) judicial proceedings

    (2) legislative proceedings

    (3) some executive statements and publications

    (4) publications between spouses

    (5) publications required by law

Conditional Privileges

Other privileges do not arise as a result of the person making the communication, but rather arise from the particular occasion during which the statement was made. These privileges are known as conditional, or qualified, privileges. A defendant is not entitled to a conditional privilege without proving that the defendant meets the conditions established for the privilege. Generally, in order 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
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