Defenses to Libel and Slander

Defamation lawsuits are notoriously difficult to win. The First Amendment of the US Constitution is often problematic for plaintiffs trying to establish that they have been defamed. There are also a number of defenses to defamation:

Truth

The fact that the statement is true is an absolute, and perhaps obvious, defense to defamation. If, after either printing or saying something about someone, you can prove that what has been said is truthful there will be no liability for defamation.

Opinion

If a defendant can prove that what they were saying was merely opinion, this may be a valid defense to an allegation of libel or slander. The difference is best defined as whether or not the statement was given to be ‘fact’ or merely an individual’s viewpoint. It also depends on the perception of the people who hear or read the statements: if the person making the statement is likely to be in a position to ‘know’ whether the statement is actually true or not, it is more likely that the statement will be perceived as fact.

 

 

Fair Comment

This is a defense that is available to people who have expressed an opinion in relation to a matter of public interest. For example, if the national media has accused a high-profile celebrity of having an extra-marital affair it will not be defamatory to say that you think that it is true.

Privilege

Anything said in court, by lawyers, judges or witnesses, and legislators in the course of duty – no matter how shockingly untrue or offensive – is bound by ‘privilege’ and is not by its nature capable of being defamatory.

Dissemination

Sometimes, information can be transmitted innocently and without the defendant’s knowledge. It is a defense to defamation if the person who passed on the statement was oblivious to its contents.

However, it is not always advisable to commence an action for defamation. Although a defamatory statement causes anger and hurt, there are a number of other issues that must also be considered. Firstly, damages awarded in successful lawsuits are often fairly modest and attorneys may be unlikely to accept cases on a contingency fee basis for this reason. Secondly, high profile lawsuits mean that the defamatory statement will be repeated on numerous occasions and may be subject to further publicity as a result of any media coverage, which has the effect of making the injurious statement better known than it was to begin with. Thirdly if the plaintiff then loses the defamation case, for whatever reason, this can reinforce the perception that the statement was the ‘truth’ - when the lawsuit may simply have failed due to a technicality or because of an inherent weakness in the case. Put simply, a plaintiff could end up poorer, and with a more damaged reputation, than if he or she had not sued at all. It is, therefore, vitally important to speak to a personal injury attorney who will be able to advise you as to your particular circumstances.

 

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