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Defenses to Defamation
There are several recognized defenses to a defamation claim. First, if the allegedly defamatory statement is true, it is an absolute defense. Second, a communication may be privileged under the law and specifically exempted from defamation actions.
- Example: In most circumstances, statements made by legislators, judges, attorneys, and those involved in lawsuits (in court or in session) are privileged.
Discussion: Do you think defamation should extend to truthful statements in some situations? Should truthful communications that are presented in a way to create a false impression about someone be defamatory? Why or why not? How do you feel about certain forums being privileged or exempt from defamation actions? What are the arguments for and against such privilege?
Practice Question: Dora learns from Elvis that Sandra has a venereal disease. While this is true, Dora and Elvis are incorrect about the specific disease. When Dora incorrectly tells another person that Dora has a specific venereal disease, has she committed a tort?
- The tort of defamation has defenses. These defenses include:
- The statement is true. If the defendant in a defamation lawsuit can prove that the statement against the plaintiff are indeed true, then that will be a defense.
- If the statement was merely a statement of opinion.
- If there was consent from the plaintiff to publish the statement.
- If the statement falls under the category of absolute privilege. For instance, statements made during judicial proceedings or statements made between spouses.
- Where the statement falls under the category of qualified privilege. This includes statements made in governmental reports of official proceedings or statements made by lower government officials such as members of town or local boards.
- If the defendant retracts the alleged defamatory statement. If the defamer retracts the allegedly defamatory statement, that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes.
In the example from the practice question, Dora has committed defamation by publishing false information about Sandra’s health. She has no defense for the same. https://www.nolo.com/legal-encyclopedia/privileges-defenses-defamation-cases.html
De Villiers, Meiring, Substantial Truth in Defamation Law (August 22, 2008). American Journal of Trial Advocacy, Vol. 1, 2008; UNSW Law Research Paper No. 2008-54. Available at SSRN: https://ssrn.com/abstract=1402413
Twomey, David P., Recent Trends in Defamation Law: From the Straightforward Action in Venture V. Kyle to Unmasking an Anonymous Poster in the “Fuboy” Case (February 7, 2015). Business Law Review, Vol. 48, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=3119983