Defamation – Slander and Libel [cont'd 2]

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Defenses to Defamation:

What you can’t sue for: privileged publications, opinions, the truth and attribution

What do you mean by a “Privileged Publication?”

If the statements are privileged, they are not actionable, meaning you cannot sue. Generally, privileged communications cover those made in the proper discharge of an official duty and statements made by a witness under oath in a judicial proceedings. This privilege covers the judge, jurors, lawyers, witnesses, and the parties. Privilege also extends to remarks made by federal or state legislators in committee hearings or floor debates. M.C.A. 27–1–804. Note, however, that the statements, even if made in Court or in a person’s official duty, must be made in the “proper” discharge of those duties or “without malice.”

“I think you're a blamin’ fool!”

Statements of opinion are generally not actionable. But if the statement contains specific facts that can be proved untrue, then it may no longer simply be an opinion that is entitled to protection from a lawsuit. So, how do you determine whether a statement is one of opinion or an attempt to make it sound like fact? The Courts look at a number of things:

1.   the general context of the statement, including the circumstances of the statement and the surrounding language used;

2.   the forum in which the statement was made;

3.   whether the statement has a meaning sufficiently precise for readers to believe that he/she is hearing as assertion of fact; and

4.   whether there is cautionary language used regarding whether the statement is one of factual or of opinion.

Like opinions, insults and epithets are not actionable.

“The truth shall set you free”

The statement has to be false; truth is a defense, no matter what the motive.


Attribution is how journalists and others avoid committing defamation under the rule that a libel or a slander is committed every time the false statement is repeated by its original maker or by another person, even though that person is repeating the defamatory statement accurately. For instance, assuming that the publication “Gary Green is a lousy accountant” rises to the level of a defamatory statement, the newspaper will report, "Bob Brown said Gary Green is a lousy accountant." The addition of the attribution makes the entire statement true, in that it is true that Bob Brown did indeed say that Gary Green is a lousy accountant. In the same way, where a possibly false statement has been alleged or reported by another, journalists and others can avoid committing defamation by indicating that the statement was "alleged" or "reported" by another. For instance, "According to reports in the local media, Bob Brown alleged that Gary Green was a lousy accountant." The media can also truthfully refer to rumors and “bad reputations” if it is true that they exist. For instance, the media can report that "Gary Green and his associates are rumored to be lousy accountants."  

Damages for defamation

“My initial response was to sue her for defamation of character, but then I realized that I had no character.”

–– Charles Barkley, on hearing Tonya Harding proclaim herself "the Charles Barkley of figure skating," 1994

Some types of statements are so damaging that you do not need to prove economic harm – such as statements that accuse the plaintiff of sexual impropriety or criminal conduct. Otherwise, you will have to provide proof of losses to your property, business, trade, profession, or occupation that were a natural consequence of the defamation.

The jury is typically allowed to consider:

1.   The extent of the publicity the defendant gave to the defamation;

2.   Plaintiff’s good name a reputation before the defamation and any loss thereafter;

3.   Plaintiff’s shame, mortification, injured feelings and mental suffering; and

4.   Plaintiff’s standing in the community.

Of course, you must have actually suffered damage to be successful. In other words, like Charles Barkley’s humorous quotation above, you must have had a good character to begin with in order to recover.

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