What Are the Defenses Against a Defamation Charge?

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You are accused of defamation - saying something or writing something bad about someone that has harmed that person. How can you defend yourself? 

What is Defamation?

Defamation is the act of harming the reputation of another by making a false statement (written or oral) to another person.

Defamation works on the premise that a person's good name has value and if that good name is destroyed, the person who destroys it should be made to pay. In the U.S. the burden of proof (the amount of evidence necessary to prove the case) is usually on the plaintiff. 

Libel and slander are both acts of defamation. Libel is defaming someone in writing, while slander is defaming them orally. 

How is Defamation Tried in Court?

Defamation in the United States is tried in state courts according to state laws. Each state decides what's defamation and what defenses are available to the defendant. States also decide the burden of proof (how much evidence is necessary to prove defamation. 

The Digital Media Law Project has a state legal guide that you can use to find the details of defamation law in your state. Click on the state image and scroll down to "defamation law."

How Can I Defend Myself Against a Libel or Slander Lawsuit?

To prove defamation, the plaintiff must show (1) that the statement is false, (2) that it was published or communicated to a third person, (3) that there is fault amounting to at least negligence, and (4) that some harm was caused to the person or entity.

The statement must be proved false. Truth is an absolute defense to defamation. If a statement is true, it can't be defamatory. For example, if someone said, "Bill stole $100 from the grocery store" and he was convicted of that theft, it's proof and not defamatory. Many defamation lawsuits are based on the question of whether a statement about someone is true.

There must be communication. It must be proved that the statement was communicated. If you wrote something about someone and you did not send it to anyone or publish it, there is no defamation. Communication requires a receiver of the message as well as a sender.

The statement is opinion, not fact. A statement must be false to be damaging, so an opinion is not defamation. An opinion, "Bill is a short-tempered jerk," can't be proven to be true or false; it's not defamatory. But, "Bill stole $100 from the grocery store" isn't an opinion, so if it's false it could be the subject of a defamation lawsuit.

There must be harm. The plaintiff must prove that his or her good name has been harmed. If you say someone is a "deadbeat" and no one believes it, there is no harm. On the other hand, if you say someone is a deadbeat, and a bank declines to give that person a loan, he or she has a case against you for defamation because there was harm done to that person because of the statement.

A court might decide that a statement was defamatory, but that there is little or no harm. This is why some defamation lawsuits are settled with a penalty of $1. It's saying that the person was harmed, but not much. In one case, physicist William Shockley won $1 in a libel lawsuit settlement against The Atlanta Constitution.

Consent has been given. If you can prove that the plaintiff consented to the statement, in an interview, for example, or in a written statement of consent, there is no defamation. It is another case in which there should be something in writing to show consent. It's not easy to prove consent in a "he said/she said" situation.

Privilege or immunity can be claimed. A common defense against defamation is privilege or immunity. There are many types of privilege, but the most common are absolute privilege and qualified privilege.

  • Absolute privilege is immunity from the charge of defamation, even if the statement is malicious. Absolute privilege is most often claimed by legislators. For example, if a Senator makes a speech in the Senate and says that so-and-so is a coward, it would be difficult to charge her with slander. 
  • The other common privilege is qualified privilege. In this case, someoneone makes a statement that could be defamatory, but it isn't because of the particular circumstances.

Public Figures and the Press in Defamation

Cases involving public figures are different from those relating to the reputations of private citizens. For example, a governor who thinks she has been defamed in the press must prove that a defamatory statement was published with "actual malice" and "reckless disregard" for the truth.