Privileges and Defenses in Defamation Cases

Learn about the most common legal arguments that might be used to defeat a defamation claim.

Updated by Charles Crain, Attorney · UC Berkeley School of Law

In the language of the law, a defamatory statement is a false statement of fact that injures a person's reputation. That means if someone says, posts, or broadcasts an untrue statement about you, and you're harmed by it, you might have a defamation case.

If someone is sued for defamation, some of the most common defenses include that:

  • the statement was true
  • the statement was an opinion, not an assertion of fact, and
  • the person who made the statement retracted it (meaning they "took it back" in some meaningful way).

A defendant may also be able to argue that, even though a statement might normally be defamatory, they're protected by some "privilege" designed to protect the ability to speak freely in situations where that's particularly important.

This article will provide an overview of each of these defenses and privileges.

The Statement is True

Truth is an absolute defense to defamation. Because defamation is a false statement of fact, truthful statements are, by definition, not defamatory. This standard gives the person who made the statement some leeway—as long as a statement is "substantially true," it can contain minor inaccuracies without being defamatory.

The Statement is an Opinion

Defamation is a false statement of fact, which means that a statement of opinion can't be defamatory. For this defense to be successful, the statement must genuinely be an opinion. It can still be defamatory to make a factual statement that includes qualifiers like "I think" or "I believe."

Two statements illustrate this distinction:

  • Let's say Daniel sends an email in which he writes, "I think Harold is a bad boyfriend." This may or may not be fair, but it's purely an expression of opinion. Different people can have different definitions of what it means to be a "bad boyfriend," and there are no facts in the statement that could be proved or disproved.
  • On the other hand, let's say that Daniel wrote, "I think that Harold beat up his girlfriend last Saturday." Here, Daniel is making an arguably factual statement that would seriously harm Harold's reputation if people believed it.

In a defamation lawsuit, a jury will be instructed to look at all of the circumstances surrounding the making of the allegedly defamatory statement, including evidence that a supposedly factual statement was actually just an opinion.

"Opinion," in this context, includes things like sarcasm, satire or hyperbole, where someone says something that isn't literally true in order to express a point of view. One way courts distinguish protected opinions from potentially defamatory statements is to ask whether a reasonable person could think that the statements were true.

The Speaker Is Protected by Absolute Privilege

Absolute privilege means that the person making the statement has the absolute right to make that statement at that time. It doesn't matter if the statement is true or what the speaker's intentions were. In other words, the person making the defamatory statement is immune from a defamation lawsuit.

This may seem unfair, but the privilege is intended to protect people's ability to speak freely in situations in which doing so is particularly important. For example, absolute privilege applies to:

  • witnesses, attorneys, and judges during judicial proceedings
  • certain government officials while they are doing their jobs, and
  • legislators performing their lawmaking duties.

The same statement by the same person can be protected by absolute privilege in one context and not in another. For example, if you made an otherwise defamatory statement while testifying at a trial, that statement would be absolutely privileged, and you would be immune from a defamation lawsuit. But if you had made the same statement to a group of people in the hallway of the courthouse during a break in the trial, you risk being successfully sued for defamation.

The Speaker Is Protected by a Qualified Privilege

Other types of communications are subject to what's called a qualified privilege. This privilege protects people who are acting in good faith, and who make statements to fulfil a duty or serve some other positive purpose. For example, the qualified privilege can protect:

  • statements made in governmental reports of official proceedings
  • statements made by lower-level government officials such as members of town or local boards
  • citizen testimony during legislative proceedings
  • statements made in self-defense or to warn others about a harm or danger, and
  • certain types of statements made by a former employer to a potential employer regarding the employee/applicant.

Unlike with the absolute privilege, a person can successfully sue for defamation if the speaker abused the qualified privilege. Different states have different specific rules, but in general the qualified privilege doesn't protect intentional lies, or statements made out of malice, spite, or any other negative motive.

The employer review qualified privilege is particularly noteworthy. In order to avoid defamation claims, some employers refuse to confirm any details about former employees other than their dates of employment. But certain types of negative statements about a former employee might be protected by the qualified privilege. If, for example, the employer fired the employee for theft, a statement about that to a potential employer could qualify as a statement made to warn others about a harm or danger. On the other hand, the qualified privilege wouldn't apply if the company's owner just disliked the employee and wanted to harm their future job prospects.

The Speaker Has Retracted the Statement

Retracting an allegedly defamatory statement will often serve as a defense to any defamation lawsuit, especially if the retraction includes an apology. Some states even require people who are considering defamation lawsuits to request a retraction before filing suit. The rules vary by state, but in general an effective retraction needs to be clear and has to be as prominent as the original statement. For example, if someone sends a defamatory email to everyone at their company, they'd need to retract the statement by sending an email to all of the same people.

Learn More About Defamation Law

Defamation is a complicated area of law, and in any defamation lawsuit the stakes are high for both sides. Whether you think you've been defamed, or someone is accusing you of defamation, it's important to understand your legal options and how a potential lawsuit might proceed. Read more about defamation, slander and libel, and make sure you know what to ask if you're looking for an attorney with the knowledge and experience to represent you in a defamation case.

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