Truth and Privilege Defenses to Defamation
Defamation lawsuits are not easy to win because the plaintiff must both prove the difficult elements of his or her case and avoid the many defenses to defamation. This article discusses some of the standard defenses to defamation, including truth and privilege.
Truth is a Defense
Truth, or substantial truth, is a complete defense to a claim of defamation. The only real issue is who has the burden of proving what is true.
Although the falsity of an alleged defamatory statement must be proven by the plaintiff as a part of the defamatory statement element of the plaintiff’s case, in most states, a defendant’s contention that the statement was true is deemed to be an affirmative defense. (An affirmative defense is a defense that must be pleaded and proved by the person responding to a claim.) In Philadelphia Newspapers v. Hepps, however, the United States Supreme Court ruled that, while truth is a defense, it is not always an affirmative defense. The court said that, where a statement by a media defendant involved a matter of “public concern,” the plaintiff had to bear the burden of proving that the statement was false. Therefore, a media defendant cannot be required to prove the truth of a statement involving a matter of public concern.
Another complete defense to a claim of defamation is privilege. The two types of privilege are absolute privilege and qualified privilege. An absolute privilege is a privilege that always applies. A qualified privilege is a privilege that applies only if the defendant has not acted with actual malice.
There is an absolute privilege for statements made in or having some relation to judicial or judicial-like proceedings. There is an absolute privilege for statements made in legislative proceedings. There is an absolute privilege for certain government officials acting in the course of their employment, including federal officials and high-ranking state officials. There is an absolute privilege for any compelled publication or broadcast.
There is a qualified privilege for statements published in a reasonable manner for which there is a public interest (e.g., the news) or for which there is a private interest of such importance to the public that it is protected by public policy (e.g., a job reference). In essence, the news media can inaccurately report newsworthy events, especially live events and breaking news, as long as it does so without actual malice.
A related incomplete defense is retraction. A retraction is a full and formal withdrawal of a prior statement. Where a defendant is held liable despite making a retraction, the retraction usually mitigates or eliminates the plaintiff’s damages. In essence, the making of a retraction suggests that the subject matter of the prior statement has been more thoroughly examined and found not to be true. As the result of a retraction, the plaintiff’s deserved good reputation, instead of being harmed, may actually be enhanced.