6 Powerful Defenses To Defamation Lawsuits: What You Need To Know

Being accused of defamation can be overwhelming. Your reputation, livelihood, and peace of mind may all feel under attack. But you have more power than you might realize. By understanding the key defenses to defamation, you can fight back strategically and reclaim your good name. As an experienced defamation attorney who’s litigated hundreds of defamation cases over the past decade, I’m here to walk you through the six most effective defenses and help you determine the best path forward.

What Are The Key Defenses To A Defamation Lawsuit?

The 6 primary defenses to defamation claims are:

• Truth: Proving the allegedly defamatory statement is substantially true
• Opinion: Statements of opinion are protected free speech
• Absolute privilege: Certain official statements, like court testimony
• Qualified privilege: Statements made with a legal/moral duty to speak
• Consent: The plaintiff agreed to the publication of the statement
• Statute of limitations: Defamation claims must be filed within set time limits

Let’s dive into each of these defenses in more detail so you can assess which ones may apply to your situation.

What Qualifies as a “Substantially True” Statement?

Truth is an absolute defense to defamation. If you can prove that the statement you made was true, you cannot be held liable for defamation – even if the statement caused harm to someone’s reputation. Further, “truth” can be somewhat relative. A statement does not have to be 100% accurate in every minor detail to qualify as “true” in a defamation case. The legal standard is “substantial truth.” As long as the gist or main thrust of your statement is true, minor inaccuracies won’t undermine your truth defense.

For example, let’s say you posted online that a public official embezzled $500,000 of taxpayer money, but the actual amount they embezzled was $400,000. While your statement is factually inaccurate, it is still substantially true. The core allegation – that the official stole a large amount of public funds – is factually correct. Truth would be a valid defense to a claim for defamation.

However, as the defendant, you have the burden of proof to establish the substantial truth of your allegedly defamatory statement with a “preponderance of evidence.” This means you must demonstrate that it is more likely than not (at least 51% likely) that your statement was true. Gathering documentation, records, witness statements or other evidence to substantiate the truth of your statement is crucial.

Opinion vs. Fact: Why It Matters for Defamation

Another powerful defense against defamation is opinion. Statements of pure opinion cannot be defamatory because they are protected free speech under the First Amendment. No matter how harsh, critical, or even outrageous an opinion is, the person expressing it cannot be sued for defamation.

However, the difference between opinion and fact is not always clear-cut. Context is key. To determine if a statement is an opinion, courts typically look at the totality of the circumstances and how the statement would be perceived by a reasonable reader or listener.

Several factors tend to distinguish opinions from facts:

• Figurative or hyperbolic language
• Statements that cannot be objectively verified
• Expressions of subjective belief or feeling
• Surrounding context and tenor that indicate personal viewpoint

For example, “I think John is a terrible employee” is more likely to be a protected opinion than “John stole money from the company.” The first statement expresses a personal judgment, while the second makes a specific factual claim that could be proven or disproven.

Likewise, “In my opinion, the mayor’s proposal is idiotic and will ruin the city” would likely be a protected opinion because of the colorful language and expression of subjective belief. But “The mayor’s proposal includes $10 million in illegal kickbacks to campaign donors” could be defamatory if untrue because it states a verifiable fact.

As these examples illustrate, couching a statement as an opinion (like starting with “I think…” or “in my opinion…”) does not automatically shield you from defamation liability. If the statement contains a provably false fact, it may still be actionable. But genuine statements of opinion, without express or implied facts, cannot be the basis of a defamation claim no matter how negative.

Absolute Privilege: Total Immunity for Certain Statements

Some statements are so important to the public interest that they are completely shielded from defamation liability, even if false. This protection is called “absolute privilege.”

Absolute privilege applies to statements made in certain official proceedings and contexts, such as:

• Judicial proceedings (trials, hearings, depositions)
• Legislative proceedings (floor debates, committee hearings)
• Executive branch communications and publications
• Communications between spouses

The rationale behind absolute privilege is that we want people to be able to speak freely in these contexts without fear of being sued for defamation. Even if their statement is false and damages someone’s reputation, the speaker is immune from liability.

For example, a witness who gives false testimony in court cannot be sued by the person they defamed. The witness’s statement, even if maliciously untrue, is absolutely privileged. The same goes for a legislator making a speech on the Senate floor or spouses confiding in each other.

Absolute privilege is a powerful defense, but it only applies in limited circumstances. The statement must be made in one of these protected contexts and relate to the proceeding at hand to qualify for total immunity.

Qualified Privilege: When There’s a Duty or Interest to Speak

A defense related to absolute privilege is “qualified privilege.” This protects statements made in certain contexts where the speaker has a legal, moral, or social duty to make the statement – or the audience has a reciprocal interest in hearing it. Qualified privilege presumes the speaker acted in good faith, without malice, in making the statement.

Some common situations where qualified privilege may apply include:

• Job references given by a former employer
• Reporting suspected crimes to law enforcement
• Statements made to protect public safety or welfare
• Communications to someone with a “common interest” (like members of an organization)

For instance, say a summer camp counselor is accused of inappropriate behavior with a child. The camp’s director reports the allegations to the police and informs the counselor’s other employer.

Even if the accusation turns out to be unfounded, the director’s statements would likely be protected by qualified privilege in many circumstances. The director had a professional and moral duty to report suspected (but ultimately untrue) abuse and alert others who employed the counselor.

How a Plaintiff May Defeat a Qualified Privilege Defense

However, qualified privilege can be defeated if the plaintiff proves the speaker abused the privilege by:

• Acting with malice, spite, or ill will
• Knowing the statement was false or recklessly disregarding its truth
• Sharing the statement with people outside the privileged context

If any of these apply, the speaker can still be liable for defamation. Compared to absolute privilege, qualified privilege is easier for a plaintiff to overcome. The audience, occasion, and purpose of the statement are key to determining if qualified privilege applies in a given case.

Consent: When the Plaintiff Agreed to the Publication

Sometimes, a person who is the subject of an allegedly defamatory statement consented to its publication. If so, they cannot later sue the speaker or publisher for defamation. Consent is a complete defense that bars any defamation claim.

Consent can be expressed orally, in writing, or implied by the plaintiff’s conduct. For the defense to apply, you must prove the plaintiff consented to the specific statement being made public. If they placed limits on their consent and you exceeded those limits, you could still face liability.

For example, say a politician sits for an interview with a journalist and agrees to answer questions about their voting record “on the record.” In the interview, the politician admits to changing their position on a key issue. If the journalist publishes that admission, the politician can’t later claim it was defamatory – they consented to it being made public.

However, if the politician agreed to answer only certain questions on the record and said other topics were “off limits,” their consent would be limited. If the journalist published defamatory comments the politician made about the off-limits topic, the consent defense likely would not apply. The politician’s consent only covered the agreed-upon scope of the interview.

Proving consent requires clear evidence, which is why getting consent in writing is always advisable when you plan to publish sensitive information about someone. If you can show the plaintiff agreed to have the allegedly defamatory information made public, their defamation claim cannot succeed.

Statute of Limitations: Use It or Lose It

Even if none of the above defenses apply to your situation, you may still be able to defeat a defamation claim using the statute of limitations. Every state has a statute of limitations that sets a strict time limit for plaintiffs to file defamation lawsuits. If the plaintiff fails to file their case within the statutory window, their claim is barred – no matter how egregious the defamation might be.

Statutes of limitations for defamation vary by state, but most range from one to three years after the allegedly defamatory statement was published or spoken. Some states have different deadlines for libel (written defamation) and slander (spoken defamation).

For example, California has a one-year statute of limitations for libel and a two-year statute for slander. Texas, on the other hand, has a one-year deadline for both.

Statutes of limitations are strictly enforced by courts. If a plaintiff tries to sue you for defamation after the statute of limitations has passed, you can raise this defense in a motion to dismiss the case. If the court finds the statute of limitations has indeed expired, the case will be dismissed – and the plaintiff is out of luck.

Circumstances that Can “Pause” the Statute of Limitations to the Plaintiff’s Benefit

However, most states recognize certain limited circumstances that can extend the time to file or “toll” the statute of limitations. The clock may be paused if:

• The plaintiff was a minor when the defamatory statement was made
• The plaintiff was mentally incapacitated or incompetent
• The defendant is anonymous and the plaintiff is diligent in pursuing the claim and attempting to identify the culprit.

Still, filing a defamation lawsuit within the standard statutory period is always the safest bet for plaintiffs. If you are accused of making a defamatory statement, be sure to confirm your state’s statute of limitations. If the window to sue has closed, that may be the end of the matter.

Protect Your Reputation with Strategic Defamation Defenses

While being accused of defamation is stressful, understanding your legal defenses can provide a path forward. By determining which defenses apply to your situation, you can take action to protect your hard-earned reputation.

Evaluate whether the allegedly defamatory statement was substantially true or purely your opinion. Consider the context in which you made the statement and whether it might be privileged. Confirm whether the plaintiff consented to publication, and check your state’s statute of limitations.

If a viable defense is available, you may be able to get a defamation lawsuit dismissed early in the proceedings – or deter the plaintiff from suing at all. Asserting a strong defense can also put you in a stronger position to negotiate a favorable settlement.

However, defamation law is highly complex, with many jurisdiction-specific rules and exceptions. If you’re facing a defamation claim, consult an experienced defamation attorney who can assess your case and build a strategic response using all available defenses. With the right approach, you can protect your reputation and put the threat of a defamation suit behind you.