What Are the Defenses Against a Defamation Charge?

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

What Are Libel and Slander in Defamation?

Defamation is the act of harming the reputation of another by making a false statement (written or oral) to another person. As with every charge, there are defenses that can be made to counter the charge.

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 Can I Defend Myself Against a Libel or Slander Lawsuit?

The Statement Is True

If the statement is true, there is no defamation. In criminal cases, the truth about someone's past is only true if the person was convicted of a crime; if someone is just accused of killing someone, that doesn't necessarily make it true. If someone is a convicted rapist, you can't defame that person by telling people that fact. After all, it's a matter of public record. 

In civil (private) cases, the truth must be shown by the written evidence. For example, if you want to show that someone has plagiarized a book, you must be able to show written evidence of the plagiarism to prove the truth of the statement.

There Must Be Harm

The plaintiff must prove that his or her good name has been harmed, for a charge of defamation to stand up. 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.

By the way, this is why some defamation lawsuits are settled with the penalty of $1. It's saying that the person was harmed, but not much. 

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.

For example, if you write a book about someone and you put it in a drawer, and someone found it and published it, did you communicate it? 

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, which protects the press from defamation charges for written or spoken statements unless they can be proved to be malicious.

It's Opinion, Rather Than Statement of Fact

If it can be shown that a statement was opinion, rather than a pronouncement of a fact, the statement may not be determined to be defamatory. Opinion as a defense depends on the context, including the stature and presumed knowledge of the person making the statement.