In order to maximize your chances of success when filing a defamation lawsuit, it is important to familiarize yourself with common defenses to defamation. The most common defenses to defamation include:
- Truth: when the allegedly defamatory statement is at least substantially true.
- Opinion: applies when the defamatory statement can neither be proven nor disproven.
- Privilege: some forms of speech, like topics of public interest, are protected as a legal right.
- Consent: if the plaintiff consents to the publication of the statement in question, they cannot claim defamation.
- Statute of limitations: a lawsuit must be filed within a specified time after the incident which gave rise to the claim.
- Statutory defenses: certain defenses are prescribed by law, like Anti-SLAPP statutes.
- Other Lesser-known defenses: some defenses, like the libel-proof plaintiff doctrine, are used infrequently today.
Victims of defamation should be aware of potential defenses before filing a lawsuit. Knowing what a defendant might argue will help strengthen a claim and mitigate risk. At Minc Law, we have filed hundreds of defamation lawsuits across the U.S. and the globe, and know exactly what to look out for when filing libel and slander claims.
In this article, we will break down each of these defenses to defamation.
How is Truth Used as a Defense in a Defamation Lawsuit?
One of the key elements of a claim for defamation of character is falsity. Restatement (Second) of Torts, § 581A (1977). For any plaintiff to win a defamation lawsuit, they must prove that another person (the defendant) published or communicated a false statement regarding the plaintiff.
If a defendant proves that the statement they made was, in fact, true they cannot be held liable for defamation. As such, truth is an absolute defense to defamation. If a defendant proves their statement was true, the litigation will end in their favor. See Brown v. Boney, 225 S.E.2d 784, 791 (N.C. Ct. App. 1979); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); Armistead v. Minor, 815 So. 2d 1189, 1195 (Miss. 2002).
For instance, if Daniel Defendant makes a post on Facebook that Polly Plaintiff committed theft after Polly was convicted of theft, Daniel has not made a defamatory statement because his comment was true.
Because falsity is an element of defamation, plaintiffs should explain in the initial complaint that the defendant’s statements were false.
However, plaintiffs and defendants may disagree on whether the statements were truthful or false. What if, for instance, the defendant publishes some statements that are true and others that are false? When this happens courts must consider the substantial truth doctrine.
What is the Substantial Truth Doctrine?
The substantial truth doctrine protects defendants from liability for minor inaccuracies in a statement that is mostly true.
In Behr v. Meredith Corp., 414 NW 2d 339 – Iowa: Supreme Court (1997), Charles Behr sued a publisher, Meredith Corporation, after his name appeared in one of their articles. The article, “How Farmers Steal From the Government,” featured four sentences detailing Behr’s conviction for fraud. In fact, Behr was convicted of fraud after submitting insurance claims in excess of $108,000 to the Federal Crop Insurance Corporation.
Behr did not dispute his conviction. Rather, he alleged that the statement that he “received more than $100,000” falsely implied that he received money from the government. In reality, the government discovered the fraud before any funds were disbursed. The Meredith Corporation said that the substantial truth doctrine should apply to their statement.
Upon review, the Iowa Supreme Court looked at all four sentences concerning Behr, as well as the gist of the article itself. The court noted that three out of four sentences were undisputedly true. The remainder of the article – as well as the paragraph in question – was about “farmer fraud directed at…farm programs.”
The court concluded that the gist of the paragraph was that “Behr was…guilty of a crime involving fraud against the federal government.” As such, the defendants successfully proved the substantial truth of their statements.
The Behr case is a great example of the substantial truth doctrine in action. While the defendant made a slightly misleading statement, the gist of their statements was not defamatory.
What Factors Are Involved in Whether a Statement is Considered Substantially True?
To better understand the substantial truth doctrine, it helps to see it in action. Below, we look at a few case examples that illustrate a court’s substantial truth analysis.
Susan B. Anthony List v. Driehaus
An Ohio case, Susan B. Anthony List v. Driehaus, 779 F.3d 628 (2015), made its way to the Sixth Circuit Court of Appeals – largely over a dispute regarding Ohio’s political false statement laws. In this case, the Susan B. Anthony List (SBA) is a pro-life advocacy organization that issued a press release calling out members of Congress who voted for the Affordable Care Act (ACA).
The press release announced SBA’s plan to “educate voters that their representative voted for a health care bill that includes taxpayer-funded abortion.” The release also listed former Congressman Steve Driehaus, who voted in favor of the ACA. SBA also attempted to display a billboard stating, “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” Driehaus found out about the proposed billboard and threatened legal action. Ultimately, he filed a complaint alleging that SBA falsely stated that he voted for “taxpayer-funded abortion.”
After lengthy legal proceedings, the case made its way to the Sixth Circuit when SBA alleged that an Ohio election law violated the First and Fourteenth Amendments. The law in question prohibits any person from making “a false statement concerning the voting record of a candidate or political official.” Unsurprisingly, the SBA case involved an analysis of whether or not their statement about Driehaus was, in fact, false.
Technically, the ACA had provisions that allowed for abortion – and the Act was taxpayer-funded. The court found that “the gist or sting of the statements appears to have at least some truth.” They also clarified that “it [was] enough that the statements had some truth, were substantially true, or were subject to differing interpretations.”
In a nutshell, even misleading statements that fail to disclose all relevant facts will not be considered “false” for defamation purposes.
Bruss v. Vindicator Printing Co.
In Bruss v. Vindicator Printing Co., 109 Ohio App.3d (1996), the Ohio Court of Appeals had to determine whether a newspaper article violated Ohio’s libel law. The plaintiff, Sue Ellen Bruss, was a dancer at the Doll House when two undercover officers arrested another dancer for prostitution. Arrest warrants were also issued for other unnamed dancers, although Bruss was not working on the night of the arrests.
Days later, a Prosecuting Attorney filed a nuisance complaint against the Doll House and certain employees, including Ms. Bruss. The Mahoning County Court found the business to be a nuisance and ordered the establishment to close.
The defendant newspaper published an article about the closing of the Doll House, also stating that Ms. Bruss was charged with prostitution but not arrested. Bruss filed suit, stating that the article made false claims about her. The portion of the article subject to dispute stated, “Also charged but not arrested were dancers Pamela Holmes and Sue Ellen Bruss, also named as defendants in today’s complaint.” Bruss argued that the statement misleadingly implied that she was charged with prostitution, which was not true.
The court noted that Ms. Bruss was accused of a civil nuisance by engaging in “lewdness, assignation or prostitution.” The court found this action enough to justify the newspaper’s use of the word “charged” and also noted that the article did not say Ms. Bruss was “charged with prostitution” as she alleged.
The gist of the news article was accurate, even if some individuals may have misinterpreted the meaning of the article. These facts were enough for the Vindicator Printing Co. to overcome Ms. Bruss’s libel claim.
Montgomery v. Ohio State University
Montgomery v. Ohio State Univ., 2012 Ohio 5489 differs from several of our other examples because it did not involve a news article. In this case, Joseph Montgomery began the National Football League (NFL) recruitment process after four years of playing Ohio State football.
As part of the recruitment process, the NFL sent Ohio State University (OSU) a “Medical and Injury History Questionnaire” to find out more about Montgomery’s medical history. One of OSU’s athletic trainers completed the questionnaire, indicating that Montgomery had a history of hay fever and high blood pressure.
Montgomery did not find out about the OSU trainer’s listing of high blood pressure until roughly ten years later when another doctor assessed him as “suffering from hypertensive heart disease…with 50[%] of the disease being apportioned to ‘pre-existing conditions.’”
When Montgomery found out about the information contained in the questionnaire ten years later, he requested more information from OSU’s team physician. The team physician, Dr. Kaeding, responded with a letter explaining why high blood pressure was included on the questionnaire. Specifically, Kaeding responded that “the University does not believe that it [the 1998 NFL Questionnaire] is inaccurate.” Montgomery filed suit, alleging that OSU and Dr. Kaeding, “reconfirmed the false statements [made in the questionnaire]” in his letter.
The court pointed out that Dr. Kaeding’s letter never referred to the NFL questionnaire as a “diagnosis,” instead stating that “OSU ‘never’ formally diagnosed [Montgomery] with hypertension.” Kaeding also identified 11 blood pressure readings, noting that 6 of the readings revealed “elevated and/or high blood pressure.”
The court reasoned that Kaeding’s comments were not false or defamatory, because Montgomery did not allege that the blood pressure readings mentioned in the letter were inaccurate. As a whole, the statements made in Kaeding’s letter were accurate.
Lahuti v. Gannet Company
In Lahuti v. Gannett Co., Dist. Court, SD Ohio (2020), plaintiff Rizwan Lahuti alleged the Zanesville Times Recorder (owned by the Gannett Co.) defamed him in several articles. In November, the Times Recorded published an article under the headline “Parents take $5,000 bribe from daughter’s rapist,” explaining that Lahuti was scheduled to stand trial for charges of rape, kidnapping, sexual battery, and bribery.
In February, Lahuti pleaded guilty to attempted abduction and bribery. In April, the Times Recorder published another article under the headline “It’s 18 months in prison for man who assaulted female, bribed parents.” Lahuti filed a defamation suit, claiming that he never assaulted or raped anyone, as the newspaper’s headlines stated.
Upon review, the court concluded that the headlines alone might be problematic, but the statements must be considered “in the context of the entire article.” After reading the full articles, the first article clarified that Lahuti had only been charged with rape (among other charges) at that time. They also found that a reasonable reader “could not read the November Article and believe that Plaintiff had been convicted of rape.”
At the time of the subsequent articles, Lahuti had pleaded guilty to bribery and attempted abduction but argued that the articles falsely implied that he “assaulted” someone.
The court looked to Ohio’s abduction statute and a dictionary definition of “assault” to determine whether the Times Recorder’s use of the word, “assault” was false. They found that abduction could fit within the dictionary definition of “assault,” stating, “even if the statements are misleading in the most general understanding of the term…they are not materially false.” According to the court, “the gist or substance of the statements” were substantially true, overcoming Lahuti’s libel allegations.
Opinion Defense to a Claim of Defamation
The former politician, Daniel Patrick Moynihan is quoted as stating, “Everyone is entitled to his own opinion, but not his own facts.” This statement is especially poignant when it comes to defamation: facts and statements of opinion are not the same. A fact can be proven or disproven, but an opinion cannot. See Dossett v. Ho-Chunk, Inc., 472 F.Supp.3d 900, 913 (D. Or. 2020).
The problem is that the line between fact and opinion is not always clear. The simplest explanation is that a fact is readily verifiable. It can only be true or false. Opinions, on the other hand, are subjective. I may think my sister-in-law’s pot roast is too salty for my taste, but my brother might think it could use more salt. My statement regarding the pot roast is a subjective matter of personal opinion, not a verifiable fact.
When a defendant shares an opinion that cannot be proven true or false, they may rely on the defense of opinion. However, a mixed statement that contains both facts and opinion might still be considered defamatory.
In Milkovich v. Lorain Journal, 497 U.S. 1 (1990), the Supreme Court explained when opinions are protected under the First Amendment. First, the court established a test for determining whether mixed statements, containing both opinion and fact, are actionable as defamation. They found that a statement containing an opinion can still be actionable if it is “sufficiently factual to be…proved true or false.” The court then identified four factors that can be analyzed to determine whether a statement should be considered fact or opinion.
Below, we take a look at these four factors.
Four Factors to Determine Opinion
To determine whether a statement is an opinion or fact, courts approach their analysis from the perspective of a “reasonable reader.” They consider four factors, applying varying degrees of “weight” to each to determine whether, all things considered, the statement constituted an opinion. This is called a “totality of the circumstances” test and it refers to a court’s need to focus on all the circumstances of a case, rather than any one factor.
The four factors courts look to when the defense of opinion is asserted are:
The Specific Language Used in the Statement
Courts will consider the common meaning given to words in a particular statement through the lens of the “reasonable reader.”
In one case, a Union newsletter published names under a “List of Scabs” and defined the term “scab” as a traitor. Upon review, the court said the term “traitor” was clearly used in a figurative sense and should not be interpreted to mean the named plaintiffs “committ[ed] the offense of treason.”
Whether the Statement is Verifiable as True or False
This factor is relatively easy to understand. When determining whether a statement is a fact, courts will consider whether a plausible method of verification exists.
In the Milkovich case that was previously mentioned, the defendant newspaper wrote a column containing a statement that Milkovich, “lied while under oath.” The court considered this statement one that could easily be verified as true or false.
The General Context of the Statement
A Court will also consider the average reader’s reaction to an allegedly defamatory statement, as well as how they appear in the entire publication as a whole.
For instance, a Massachusetts Court found that statements published on the editorial page of a newspaper were protected opinion because one reasonably expects editorials to contain opinion. They noted that if the same story were published on the front page of the paper where news is typically reported might have evoked a different reaction in the reasonable reader.
The Broader Context in Which the Statement Appeared
Similar to the “general context” factor, courts will also consider the broader, big-picture context of a statement.
In the case of the Union newsletter previously mentioned, the court looked to the broader context of the usage of the term, “scab.” They found that “exaggerated rhetoric [like the interchangeable usage of “traitor” and “scab”] was commonplace in labor disputes.” As such, reasonable readers would understand the intended meaning of “traitor,” in its exaggerated, figurative sense – rather than assume it implied criminal conduct.
While not every jurisdiction applies these same tests, most states look at factors at least similar to those listed above. Courts will also consider whether a reasonable reader would consider a statement to be an opinion.
Wondering if defamation is considered a crime in your state? Make sure to check out our blog post by attorney Andrew Stebbins explaining criminal defamation laws in the United States.
Defense of Privilege to Defamation Claims
In the field of defamation law, a privilege is a legal right for a person to publish statements to another person or group of people.
The primary goal of defamation privileges is to promote freedom of speech and expression. The privilege to make potentially defamatory statements varies based on context, however.
There are five categories of privilege when it comes to defamation:
- Absolute privilege,
- Qualified privilege,
- Fair report privilege,
- Statutory privilege, and
- Neutral reportage.
Below, take a closer look at each category of privilege, along with some case examples.
Absolute Privilege as a Defense to Defamation
Absolute privilege, as it sounds, completely protects the publisher of a false statement from liability. This means a plaintiff will not recover defamation damages, even if they establish every element of defamation if the defendant has absolute privilege. See 50 Am. Jur. 2d Libel and Slander § 258.
In general, statements made in the public interest – where free speech is essential – are subject to absolute privilege. While some individuals may abuse this privilege, courts have weighed the risk to free speech and decided that First Amendment rights outweigh an individual’s right to live free from false or malicious statements. See Jacobs v. Adelson, 130 Nev. 408, 413 (2014). As you might imagine, absolute privilege exists in only the most limited of circumstances.
In most states, absolute privilege exists with respect to judicial proceedings, official proceedings, and executive actions. For instance, most individuals have an absolute privilege to make statements during court proceedings, even if they would otherwise be defamatory. See Jarman v. Offutt, 239 N.C. 468 (1954). Without the existence of absolute privilege, individuals might lose the ability to present unpopular opinions or commentary on lawsuits, policies, and political activity.
Not all states recognize the same absolute privileges, so it is always wise to consult with an experienced defamation attorney to determine if absolute privilege might exist in your state.
What is a Qualified Privilege?
Qualified privilege is another term for conditional privilege. A defendant can only prevail with this privilege if specific circumstances apply. In general, qualified privilege only applies to communications made in good faith, for a specific purpose, and to a limited audience.
One example of conditional privilege applies to statements made during a meeting that deals with matters of public concern, like a town council meeting. See Restatement (Second) of Torts § 611. Under Ohio defamation law, we recognize a common interest privilege, which protects communications between individuals who share a duty. Hahn v. Kotten, 43 Ohio St. 2d 237, 244 (1975).
Conditional privileges are not as comprehensive as absolute privileges. Even if a defendant shows that their conduct was conditionally privileged, a plaintiff may still argue that the defendant abused their privilege. See 50 Am. Jur. 2d Libel and Slander § 259.
If, for instance, a defendant asserts qualified privilege, but they acted with actual malice, qualified privilege may not apply. See Restatement (Second) of Torts § 594 cmt. b.
Fair Report Privilege: Protecting the Republication of Information in Official Reports
The fair report privilege enables individuals and organizations, like the news media, to report on information contained in official documents. Of course, this does not mean defendants can make statements that are not complete, fair, or accurate. The defense does not give reporters free rein to lie about the information contained in official documents.
Courts often handle the fair report privilege in a manner similar to the substantial truth doctrine. Just as courts look to the overall gist of a statement to assess its truth, they will look at the original content of an official report to determine accuracy. If the reported information is substantially the same as the official report, the fair report privilege will apply.
Statutory Privilege: Statements Protected By Law
Statutory privileges are special defenses enacted by state or federal law. These defenses identify specific circumstances or statements that are allowed by law, even if the statement is defamatory.
For instance, the state of Indiana provides a statutory privilege for individuals making statements to the Indiana Employment Security Division. The statute protects employees and employers from liability for statements made regarding unemployment claims.
Under Illinois defamation law, hospital administrators and staff are protected from defamation liability for statements made in peer review committees.
In both defamation examples, state legislatures identified situations in which individuals should be able to speak freely, to address issues of public importance – like unemployment fraud or the improvement of patient care.
Neutral Report Privilege (Neutral Reportage): A Safeguard For News Organizations
The neutral report privilege protects news organizations when reporting important public issues, even if the issue is subject to debate. It protects those who re-publish allegations concerning public figures, even if the allegations were unverified.
For example, say one of your local politicians refers to another politician as “untrustworthy.” Within hours, your local newspaper publishes a story on the matter, quoting the politician. The newspaper’s re-publication of the statement, even though it is possibly defamatory, will likely fall under the neutral report privilege.
In Barry v. Time, Inc., 584 F.Supp. 1110, 1127 (N.D. Cal. 1984), a California court reasoned that “the whole purpose of the privilege is to inform the public and let it judge which side is true.” In a nutshell, it is not the reporters’ role to determine if the quoted public figure is speaking the truth when their comment is a matter of public interest.
Online Content Removal Fact: Today, most defamatory content is posted online. If you are dealing with social media defamation, review forums, or shaming websites, you may wonder whether the content can be removed. The good news is that some online content can be completely removed. Experienced internet defamation attorneys may be able to help you remove unwanted online content with a court order to remove content, editorial request, or through other litigation alternatives.
The Defense of Consent
If a plaintiff gives an individual consent to publish a statement, they cannot later expect to win a defamation claim over the statement in question. See Restatement (Second) of Torts § 583. This may seem like common sense, but like most legal issues, the defense of consent is not always cut and dry. Consent can be either express (e.g., “I permit you to publish the transcript of our previous conversation.”) or implied from the circumstances.
Even if you give a publisher consent to publish your biography, for example, you can place limits on what the publisher presents to the public. Say you are having a conversation with a writer planning to publish your autobiography and you say, “What I am about to tell you is completely off-the-record, you cannot share this with anyone else…” this might indicate your intention to limit the publication of your next statement.
Or maybe you give consent to a textbook publisher to print your opinion on a particular topic. You tell them that you are only agreeing to speak with them on the terms that their textbook is for educational purposes only. Later, you find out the publisher also shared your quote as part of a “tell-all” gossip novel. The publisher cannot assert a consent defense when you clearly limited your consent.
It is not necessary that the defamed person knew that he consented to publication of a statement that is defamatory in nature, but it is enough that the defamed person knew the exact language of the publication or had reason to know it could be defamatory and consented anyway. Id. cmt. d; See e.g. Ziemkiewicz v. R+L Carriers, Inc., 996 F. Supp. 2d 378, 398 (D. Md. 2014).
Some jurisdictions have developed standards for evaluating whether a plaintiff consented to the publication of a defamatory statement. In the District of Columbia, for instance, defendants asserting consent must show that the statements were relevant to the purpose for which consent was given, in addition to proof of either express or implied consent. Farrington v. Bureau of Nat’l Affairs, Inc., 596 A.2d 58, 59 (D.C. App. 1991).
The Statute of Limitations
One of the most common defenses to defamation is the statute of limitations. Statutes of limitations (SOL) are laws that dictate how long a plaintiff has to file a lawsuit after an event occurs. In most defamation cases, the defamation statute of limitations may begin to run when the plaintiff discovers (or should have discovered) the publication of the defamatory statement.
In some states, the statute of limitations starts once a plaintiff finds out about the defamatory statement. The majority of U.S. states, including Ohio, have a one-year statute of limitations for defamation claims. See Petro-Lubricant Test. v. Adelman, 148 A.3d 441 (2016). While statutes of limitations vary state-to-state, most jurisdictions require that a defamation claim be filed within 1–3 years after the statement is published or communicated.
Defamation Lawsuit Jurisdiction Tip: You do not necessarily have to file a defamation lawsuit in the state where you live. There may be strategic reasons, like a longer statute of limitations or fewer defenses to defamation in another state. When it comes to online defamation, you can typically file a defamation lawsuit in the jurisdiction (1) where you live; (2) where your business is located; (3) where the defamer lives; or (4) where you experienced reputational damages from the defamation.
Statutes of limitation can be tricky when you are dealing with a viral news story (or any article picked up by more than one publication). A single defamatory statement can spread like wildfire – getting shared and republished by many sources.
If a defamatory statement is republished, does the statute of limitations start over with each additional publication? In a word: No. The single publication rule settled this question concerning print media in Gregoire v. G.P. Putnam’s Sons, 298 N.Y. 119 (1948); Age-Herald Pub. Co. v. Huddleston, 207 Ala. 40 (1921); Herron v. KING Broadcasting, Co., 109 Wn.2d 521 (1987) and again in Firth v. State of New York, 98 NY2d 365 (2002) when the rule was applied to websites.
In other words, once a defamatory statement is published for the first time, the statute of limitations starts running, even if the statement is later re-published by others.
Statutory Defenses to Defamation Claims
The term “statutory” means that a rule was enacted by a legislature, as opposed to common law. Much like statutory privilege, some state and federal laws create defenses to defamation in specific circumstances. Below are some of the most common statutory defenses.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act is an oft-referenced defense to online defamation. Section 230 makes internet service providers (ISP), like Google and Facebook, immune from defamation lawsuits for statements published by users.
If John Smith posts a defamatory statement about Jane Doe on his Facebook page, Jane cannot sue Facebook for defamation based on that post. But, John Smith may still be held liable for his defamatory statements.
There are some limited exceptions to Section 230 immunity, like when an ISP edits a statement published by a third party. For more information on Section 230, check out our article, “What is Section 230 of the Communications Decency Act?”
To prevent powerful entities from using defamation suits for intimidation, states enacted Anti-SLAPP laws. While the name may sound like an act of violence, SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.”
For example, Cal. Code Civ. Proc. § 425.16(a) (California’s Anti-SLAPP law) was enacted to deter “lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
The purpose of this Anti-SLAPP law is “not to insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Trinity Risk Management, LLC v. Simplified Labor Staffing Solutions, Inc., 59 Cal. App. 5th 995, 1004 (Cal. App. 2d, 2021).
Anti-SLAPP laws help courts weed out meritless claims. In essence, they keep people from threatening defamation lawsuits over matters in the public interest.
Lesser-Known Defenses to Defamation
Some defamation defenses are rare, but still applicable to modern defamation lawsuits.
Wire Service Defense
To understand the wire service defense, it helps to know the term, “wire service.” A wire service is a news agency that syndicates news copy via satellite, like the Associated Press (AP). If a local newspaper republishes a story from the AP assuming the details are true, they are not liable for the republished content.
The caveat is that the republished content cannot be materially altered, and it had to come from a reputable news agency. In the internet age, this defense is used infrequently.
Innocent Construction Rule
The innocent construction rule protects defendants from liability for statements that are ambiguous. As you have likely experienced, two people can interpret the same statement differently. Just because one person interprets a harmless statement in a defamatory light, does not mean everyone else must interpret the statement the same way.
This rule enables courts to look at the context of a statement to infer its true meaning. If a statement can be interpreted as both defamatory and non-defamatory, a defendant may be able to use the innocent construction rule to escape liability.
Incremental Harm Doctrine
Say a popular business magazine runs an article criticizing a company for poor labor standards. The business files a lawsuit citing a defamatory statement in one of the article’s paragraphs. Yet, the rest of the article is factual and non-defamatory (but still harmful to the business’s reputation). One could argue that the business’s reputation would have suffered regardless of the defamatory statement.
When a court applies the incremental harm doctrine, they compare the defamatory statements with those that are non-actionable. If the defamatory portion does not substantially harm the plaintiff’s reputation in comparison to the other statements, the defense will prevail.
Libel-Proof Plaintiff Doctrine
The libel-proof plaintiff doctrine is especially rare in current jurisprudence. This doctrine recognizes that some plaintiffs have such a low standing that nothing could hurt their reputation. As you might imagine, these cases are few and far between in today’s world. Its use would require a court to label a plaintiff as someone of ill-repute.
While this defense is rare, it does exist. As recently as 2006, a Massachusetts court found that a plaintiff was libel-proof because he was charged with murder at the time he filed his defamation lawsuit. Simply put, courts do not like criminals using defamation lawsuits to defend a chronically poor reputation.
Minc Law Can Help Identify Defenses to Your Defamation Claim
Before you file a defamation lawsuit, it helps to assess which defenses the defamer may try to use. Our attorneys will help you determine if you have a strong claim and identify potential defenses from the outset.
“Unbelievable! I am a C Suite executive who has dealt with the top law firms and Aaron, Daniel, and Kaelynn and team are superior in the quality and execution of matters than most of these firms. When I had an urgent issue arise related to defamatory content online, Aaron and his team jumped on the matter immediately and within a few days had the content down and deleted. Moreover, we have not stopped there and have initiated litigation to ensure that these are repercussions for such comments. I am writing this out of my own volition and at my urging because I would like others to know that if you have any issues with content online about yourself, you don’t have to feel helpless and can proactively identify and hold those responsible accountable. Thank you Minc Law firm. From bottom of my heart.”
-Anonymous, Dec 11, 2020
If you are unsure what defenses you might be facing, contact the internet defamation attorneys at Minc Law. We offer free, no-obligation consultations to help you decide the best strategy for moving forward. Contact us by reaching out to a Chat Representative, calling us at 216 373-7706, or by filling out our online contact form.