Legal Resource Center
Consent as a Defense to Defamation
Consent of the person who allegedly has been defamed is always a complete defense in the event of a defamation claim. The only exception occurs when a person uses republication of defamatory material in order to determine the source of the original publication or to confirm its content or meaning. Although the person does make a request for the republication, such an honest inquiry aimed at identifying the source of defamatory remarks does not prevent that person’s successful defamation claim against that source.
Otherwise, the consent of the plaintiff provides absolute privilege to the publisher and bars all recovery in a defamation claim. Warr v. Jolly, 6 Car. & P. 497, 172 Eng.Rep. 1336 (1834); Borden, Inc. v. Wallace, 570 S.W.2d 445 (Tex.Civ.App. 1978).
Identifying Consent to Publication
A person may give consent by words, actions or by certain behavior, including inaction. A statement of consent does not have to be directly spoken or communicated to another, and it does not have to be written down in order to be considered valid.
It is enough that the consent is understood by or seems apparent to the publisher as determined by reasonable people based on the conduct of the plaintiff and the circumstances surrounding the publication. Brockman v. Detroit Diesel Allison Division, General Motors, (Ind.App.), 366 N.E.2d 1201 (1977).
The plaintiff does not have to know that the material he approved for publication is defamatory. If he knows the exact language of the publication or has reason to know that it could be defamatory and he gives consent, he is accepting the risk that it could be defamatory. Likewise, if a person participates in an activity, is part of an organization, or allows an investigation knowing the results of any of these will be reported, this constitutes consent and acceptance of the risk that the publication could be defamatory.
In giving consent, the plaintiff may determine the extent of the privilege given the publisher by setting limitations. If no limitations are set, privilege is absolute regardless of whether the publisher exhibits ill will or uses the material inappropriately. If limitations are set and publication is made outside of those limitations, the publisher does not have the plaintiff’s consent and recovery is not barred in the event of a claim. Royer v. Steinberg, 90 Cal.App.3d 490, 153 Cal. Rptr. 499 (1979)
Consent is not considered valid and cannot bar recovery if it is obtained fraudulently. Nor can a person give consent if he or she is under duress or does not have the capacity to give consent.
When considering a defamation claim, it is important to understand not only whether a person has given consent to a publication, but whether that consent has been given with limitations, including a specific time frame or a specific purpose. The attorneys at Minc LLC, can help you determine how this rule applies to your situation. Contact them at (216) 373-7706.