Defenses to Defamation

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Defenses to Defamation Charges

As we mentioned before, truth is a complete defense to a charge of defamation. So is consent. In addition, absolute privilege is a complete defense to defamation as well. 

Where the defendant has an absolute privilege, the plaintiff will not have a viable cause of action against him, even if he can prove that the defendant acted with malice, that the defendant’s statement was false, or that the statement was widely published. This is important to remember because in cases where the defendant only has a conditional privilege, which we will discuss later, these elements will result in canceling out the defendant’s privilege.

Absolute privilege exists in the following forms:

1. Legislative Privilege
2. Judicial Privilege
3. Executive Privilege
4. Domestic Privilege

First, the legislative privilege states that all federal and state legislative officials have absolute privilege to utter defamatory statements while on the floor of the legislatures or in committee sessions. Further, there is no requirement of relevancy here. That is to say, defamatory statements made on the floor of the legislature or in a committee session are privileged even if they are completely irrelevant to the proceedings being conducted. See Tenney v. Brandhove, 341 U.S. 367 (1951).

Second, the judicial privilege gives any participant in a judicial proceeding the absolute privilege to utter defamatory statements in the course of the proceedings so long as the statements have some relevancy to the proceedings. See Irwin v. Ashurst, 74 P.2d 1127 (Or. 1938). For the purposes of this privilege, judicial proceedings are considered to have started when the initial complaint is filed. However, the privilege is not limited to statements made at the trial itself. Statements made in any pre-trial event or post trial appeal are privileged as well. Please also note that defamatory statements that have no connection or relevance to the judicial proceedings are not protected. Participants in judicial proceedings include judges, attorneys, witnesses, jurors and others involved in the action. Please note that a stenographer has the absolute privilege to republish any defamatory statements.

Third, the executive privilege affords an absolute privilege to high ranking executive officers of state and federal governments when acting within the scope of their discretionary duties. Please note that as with the judicial privilege, the executive privilege also requires that the statements be relevant to the proceedings. High ranking executives include presidents, governors, cabinet members and people in similar positions. See Kilgore v. Younger, 30 Cal.3d 770 (1982). It is an open question as to whether or not their advisors are also afforded the privilege.

Finally, the domestic privilege affords a spouse the absolute privilege to make defamatory statements about a third person to their spouse.

Certain defendants are afforded a conditional privilege which exists when a speaker does not qualify for an absolute privilege but needs protection from a defamation suit that might otherwise inhibit him from speaking.

In order for defendants to qualify for a conditional privilege, the following three elements must be in place.

1. The defendant must reasonably believe that an important interest is threatened. The threatened interest can be his own, the interest of the person he is publishing to, or any other third person.
2. The defamatory statement must be relevant to the interest that the defendant is trying to protect. The relationship can be a business relationship as well as a familial one.
3. The defendant must publish the defamatory statement to a third person who the defendant thinks will be able to protect the interest that the defendant is trying to protect.

If these three elements are in place, defendant qualifies for a conditional privilege. See Weenig v. Wood, 349 N.E.2d 235 (Ind. 1976).

However, the defendant is only allowed to volunteer defamatory information if he has a relationship with the person he is publishing his defamatory statement to. If there is no relationship between the defendant and the third person he has published the defamatory statement to, then the defendant cannot volunteer defamatory information.

However, even when the defendant has no relationship to the third person, the defendant will have a conditional privilege for defamatory statements he makes in response to a request for information about plaintiffs. The following two examples illustrate these points:

1. Tiki says to his brother Ronde, “Do not lend any money to Warren because he never pays people back.” In this situation Tiki has a conditional privilege that will protect him from a defamation suit. He has a reasonable belief that an important interest is threatened (his brother’s financial well being), the defamatory statement is relevant to the interest that Tiki is trying to protect, and he published the defamation to a third person who is in a position to protect that interest. Further, the fact that Tiki volunteered this defamatory information is okay because he has a relationship with the person he has published the defamatory statement to (they are brothers).
2. Warren applies for a job with Buccaneer, Inc. Warren lists Tiki as a reference. Buccaneer Inc. calls Tiki to ask about Warren. Tiki tells Buccaneer Inc. that Warren is not qualified to do the work Buccaneer, Inc. will hire him to do. In this situation Tiki has a conditional privilege that will protect him from a suit by Warren. Tiki has a reasonable belief that an important interest is threatened (that Buccaneer, Inc. will hire an unqualified employee), the defamatory statements Tiki made are relevant to the interest he is trying to protect, and he is publishing the defamatory statement to a person who is in the position to protect the interest (the company). The fact that Tiki has no relationship to the company does not affect the privilege, because Tiki has not volunteered any information. He has made his defamatory statements in response to the company’s request for information. Thus he is protected by the privilege. 

Had Tiki said to the company, “Warren is not qualified to do the work you are hiring him to do and, by the way, he has committed adultery three times,” his defamatory statement regarding Warren’s fidelity would be actionable both because it isn’t relevant to the interest Tiki is trying to protect and because the information is volunteered (the company did not ask Tiki about his marital fidelity).

In addition, a person has a conditional privilege to make defamatory statements if he believes that a public interest is threatened and the person he publishes his defamatory statements to is in a position to protect that interest.

While the conditional privilege will protect the defendant if the elements we have just discussed are met, there are ways in which the privilege may be lost. The general rule is that the defendant must honestly believe that his defamatory statements are true. Thus, if he knows that his defamatory statements are false, he forfeits his conditional privilege and the plaintiff will have a viable cause of action against him.

Please note that even if the defendant’s belief in the truth of his defamatory statement is completely unreasonable, he will be protected by the privilege so long as he honestly believes that the statements are true.

Further, as we said before, one of the elements required for the conditional privilege is that the defendant believes that there is an important interest at stake. Thus, if the defendant makes his statements only out of malice or out of an effort to hurt plaintiff, he will lose his conditional privilege.

Additionally, the defendant will only be protected by the privilege if he publishes his defamatory statement to people who are in position to protect the interest that is at stake. Thus, if the defendant excessively publishes his defamatory statement he will lose the privilege.

Although no automatic privilege exists for statements of opinion, courts have traditionally extended protection to statements made by critics so long as the critic’s comments were on a matter of public interest, were based on fact and expressed the critic’s honest views on the matter in which he was commenting.

As we said before, anyone involved in judicial or legislative proceedings, and certain high ranking federal and state executive officers, have an absolute privilege to utter defamatory statements. However, reports of those judicial legislative and executive proceedings only have a conditional privilege.

People who publish reports on these proceedings have a conditional privilege only so long as the reports are fair and accurate.

Finally, there are certain privileges that are extended by federal law. Under federal law, radio and television stations have an absolute privilege to broadcast defamatory statements made in campaign speeches of candidates running for government office. Further, any comments made by a private citizen to government officials against appointing a third person to a government post are privileged as well. These protections are absolute as far as original publishers are concerned. Re-publishers are not automatically protected by this absolute privilege and, in the event that a re-publisher is sued for defamation, he must establish his own privilege in order to avoid liability.

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