If you have been sued for defamation, or if you are being threatened with a defamation lawsuit, you may want to know how you can defend against it. Some defenses essentially admit that the statement was defamatory but argue that the speaker is shielded from liability. Other defenses attack the plaintiff’s ability to prove an essential element of the defamation claim. The plaintiff needs to show that they suffered harm because of a false statement of fact, and this is not always as straightforward as it sounds.
Assuming that the plaintiff can make out the elements of a defamation claim, you still may be able to argue that an absolute privilege shields you from liability. This type of privilege most often applies to public officials, people involved in judicial proceedings, and spouses. Your husband or wife cannot win a defamation lawsuit against you, even if your statement was defamatory. If you make a defamatory statement while you are testifying in a trial, you are shielded from liability.
Members of the executive, legislative, and judicial branches generally cannot be held liable for defamation, even if they acted with knowledge of the statement’s falsity and with the intent to harm the subject.
A qualified privilege means that the plaintiff still may be able to prevail, but they must meet a higher burden compared to a standard defamation claim. In addition to proving its core elements, they will need to prove a higher level of culpability by the speaker. This usually involves intent, recklessness, or malice, but each state defines the required mental state differently.
Situations in which a qualified privilege may apply include statements made in self-defense or to protect the safety of others, statements by an employer to a former employee’s prospective employer, and reports of official proceedings. Members of local governments also have a qualified privilege against defamation, as do people who are testifying in legislative proceedings. (Note that this is a lesser level of privilege than the absolute privilege for people who are testifying in judicial proceedings, as described above.) Also, professional critics of cultural works are entitled to make negative statements about a subject as long as these are fair criticism. These are just some examples of when a qualified privilege may apply.
You may be concerned about your liability if you are an employer who fired an employee for serious misconduct, and another employer asks you for information about that employee. You can avoid this issue by refusing to provide information about former employees other than their dates of employment. However, if you choose to provide details about their firing, you may be protected under the qualified privilege. This is especially true if the misconduct was serious, such as embezzlement by the former employee.
This is one of the defenses to a defamation claim that essentially asserts that the plaintiff cannot prove the required elements of the claim. Since defamation involves a false statement of fact, the claim cannot succeed if the statement is true. Even if the subject loses their job or suffers another serious financial loss, you will not be liable for damages.
Similar to the truth defense, the opinion defense attacks an essential element of the claim. This is not quite as straightforward, however, since some statements that are framed as opinions may be reasonably interpreted as facts in some contexts. A qualifying statement that something is your belief or opinion may or may not be enough to shield you from liability. The jury can consider all of the surrounding circumstances, including your relationship to the subject of the statement and the audience of the statement, the level of detail in the statement, and your reasons for making the statement. If they determine that you were simply disguising a factual statement with an empty disclaimer, you can still be liable for damages.
In some cases, you may be able to defend against a defamation claim by publicly retracting the statement and apologizing for it. The retraction likely would need to occur in the same place as the original statement.