Online defamation lawsuits and claims are ripe with twists and turns. Oftentimes, online defamation plaintiffs fail to contemplate that the other side (the alleged defamer) may not be in the wrong, as there are many defenses that defendants may rely on to avoid liability for defamation.
We go through all of the most common privileges and defenses available to defamation defendants below.
Online defamation involves a false statement of fact, something which can be proven true or false. The defense of opinion may be relied on by a defamation defendant in cases involving a statement(s) that is incapable of being proven true or false.
If a statement cannot be independently verified as true or false, then a defendant may invoke the opinion defense. However, statements that contain both opinion and fact may be actionable where the facts alleged are defamatory and false.
Simply labeling a defamatory statement as ‘opinion’ can’t still qualify as defamation. Should a third party on the receiving end of the statement (whether it be verbal or written) reasonably interpret a statement to be one of fact, then a statement can still be classified as defamatory.
U.S. Supreme Court Case: Milkovich v. Lorain Journal Co.
The defense of opinion generated considerable discussion in the 1974 landmark case of Milkovich v. Lorain Journal Co, where the U.S. Supreme Court effectively eliminated a separate constitutional privilege for statements of opinion by suggesting that the already erected constitutional safeguards protecting opinion were sufficient.
The Supreme Court established a straight-forward test for determining whether a statement is actionable for defamation, emphasizing that a statement will be actionable if it is “sufficiently factual to be susceptible of being proved true or false.”
In rejecting that a separate constitutional privilege for opinion should exist, the Supreme Court in Milkovich reasoned that an unqualified opinion privilege (in addition to the defense of opinion) would “disrupt the delicate balance between the constitutional need for vigorous public debate and the legitimate state interests in protecting personal reputations.”
Subsequently, several states have responded to the Court’s ruling by implementing an opinion privilege against libel claims into their respective state constitutions. Several states that have codified the opinion privilege into their constitutions include New York, Illinois, Ohio, and Texas.
Test For Determining Whether Statements Are Legally Protected Opinion
When determining whether a statement is opinion or not, most state courts apply a three to four-factor test that looks at the totality of different facts and circumstances. When applying a totality test to the statement(s), a court will generally approach their analysis of the factors from the perspective of a “reasonable reader” and may give varying degrees of “weight” to each.
For example, Ohio courts look to the following four factors to determine whether a statement(s) is opinion or fact:
- The specific language used by the defendant;
- Whether the statement(s) is verifiable;
- The general context of the statement; and
- The broader context in which the statement appeared.
Although tests vary by state, we will use the above elements from Ohio’s rule to explain and expand on each of these elements further below.
Specific Language Used
Ohio courts will look to the specific language used by the defendant when determining whether an allegedly false statement(s) is opinion or fact. During a court’s inquiry into the specific language used by a defendant, the court will focus on the common meaning ascribed to the words by an ordinary reader and whether the language has a “readily ascertainable meaning or is ambiguous.”
For example, in the 1974 case of Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, a union newsletter published the names of the plaintiffs under the heading “List of Scabs,” with an accompanying derogatory definition of the term “scab” (traitor).
The court considered the broad context of the statement, finding that the epithet “traitor” being used in the context of a highly publicized piece of union literature was figurative and not to be taken as an assertion that the employees named had “committ[ed] the criminal offense of treason.
Whether the Statement is Verifiable
Under the second factor that Ohio courts will look to, if an allegedly defamatory statement(s) “lacks a plausible method of verification, a reasonable reader will not believe that the statement has specific factual content.”
For example, in Milkovich, a newspaper column contained a statement asserting that the plaintiff had lied while under oath – something that was easily verifiable as true or false.
General Context of the Statement
The general context of the allegedly defamatory statement(s) considers the reaction by the average reader viewing the words while also looking at how they appear in the entire publication as a whole to determine whether a statement should be classified as opinion or fact.
For example, courts have considered the general influence that genres of literature will have on an average reader. In the 1980 case of Loeb v. Globe Newspaper Co., 489 F.Supp. 481 (D.Mass. 1980), a court held that a statement alleging the plaintiff had never backed a winner in a presidential election was protected opinion due to its publication on the editorial page of a newspaper rather than the front page (where news is reported).
Broader Context of the Statement
When a court analyzes the broader context of an allegedly defamatory statement(s) they will focus on the context of the statement from the reader’s viewpoint.
In the aforementioned case of Old Dominion Branch, when the term “scab” was analyzed in a broader social context, the Court found that this type of “exaggerated rhetoric was commonplace in labor disputes” and readers would understand it to be opinion rather than an imputation of actual criminal conduct.
While the codification and implementation of online defamation laws in the United States are still somewhat recent, having only taken shape from 1964 onwards, the core ideas shaping modern-day online defamation and libel laws date back to the late-1700s.
The 1734 case of John Peter Zenger shaped modern-day libel laws in the United States as we know them. In 1734, John Peter Zenger was incarcerated for nearly one year after lodging “libelous” attacks against colonial governor William Crosby after printing copies of newspapers to voice his opinion against his actions. Represented by lawyers Andrew Hamilton and William Smith, Sr. Zenger argued that a statement should not be considered libelous if it is truthful. While a true statement may be damaging to a person’s standing in the community, it does not give rise to an actionable claim for defamation.
Zenger was ultimately acquitted by a jury, establishing the precedent that truth is an absolute defense to a libel lawsuit.
While the truth may hurt, it does not give rise to an actionable online defamation claim. Truth is an absolute defense to online defamation actions in the United States. Compared to the defense of opinion, the defense of truth is the exact opposite because a true statement(s) must objectively be capable of being proven true or false, then it will be actionable in court.
Truth and/or Falsity exists at the heart of U.S. defamation and libel law. Simply put, if a statement and/or statements in question are factually true, then there is nothing to dispute. Case closed.
Substantial Truth Doctrine
The defense of truth does not mean that a defendant needs to be truthful down to “every single detail.” Immaterial and minor inaccuracies occur. Under the substantial truth doctrine, courts will analyze a statement as a “whole” rather than one or two specific points. Therefore, even when a statement contains immaterial inaccuracies, a defendant may rely on the defense of truth if the “gist or “sting” of the statement is factually true.
For example, in one particular California defamation case involving a dental patient defendant who left a less than stellar review, the court found that while the defendant reported imprecise timelines and improperly interpreted staff motives, the core message of the review was still substantially true and thus unactionable.
The Defense of Privilege
The defense of privilege simply refers to a defendant’s right or legal enjoyment to do and/or say something at a certain time. In the context of defamation, the defense of privilege enables a person to communicate or publish a statement regardless of its contents. If a statement is not protected by any of the below defenses of privilege, then it will be deemed “unprivileged” and avail the party who communicated or published it to legal liability. A privilege statement on the other hand will not avail the party who communicated or published it to legal liability.
The defense of privilege exists to advance core democratic policies by ensuring free debate and open discussion, without the fear of legal repercussions. Should privilege cease to exist in the United States, many decision-making mechanisms, processes, and bodies as we know could fail to protect basic rights or may fail to do so as well as they do currently in our society.
Privilege is typically broken down into five fundamental types:
- Absolute Privilege
- Qualified Privilege
- Fair Report Privilege
- Statutory Privileges
- Neutral Report Privilege
Absolute privilege is as its name implies – absolute – and is an all-encompassing and immunizing form of legal privilege. Absolute privilege enables persons to publish or communicate specific statements, regardless of whether the contents of the statement are defamatory or not.
As absolute privilege is unqualified, it even protects persons who publish or communicate statements with actual malice or reckless disregard. Due to its all-encompassing nature, absolute privilege is typically found at the heart of our decision-making processes. Absolute privileges vary from state to state, but by in large include:
- Judicial proceedings;
- Official proceedings;
- Executive actions.
Without absolute privilege, persons in judicial, legislative, administrative, and official roles would be unable to present the “flipside of the coin” when drafting legal laws, policies, and regulations, leaving them subject to unintended consequences and ambiguities.
A judicial proceeding is a legal proceeding in court to enforce or determine legal rights. Common parties to judicial proceedings include judges, judicial officers, officials, and other persons performing judicial functions (including attorneys). Plaintiffs and defendants in judicial proceedings are also protected by absolute privilege.
For example, under North Carolina law, absolute privilege is not just restricted to statements made during trials. It includes every proceeding of a judicial nature before a competent court or tribunal, or before an officer with judicial or quasi-judicial powers. It even extends to statements made in affidavits filed in mental commitment proceedings.
Similar to judicial and legislative proceedings, official proceedings are quasi-judicial proceedings that are typically limited to a specific area of authority and are not bound by precedent in the common law.
Unlike judicial and legislative proceedings, which follow strict rules of evidence and procedure, official proceedings follow less rigorous guidelines. Official proceedings commonly manifest themselves as proceedings before administrative agencies and boards, such as hospital committees, zoning panels, and professional boards.
For example, in the Illinois case of Belluomini v. Zaryczny, the court walked through six powers that quasi-judicial bodies possess:
“(1) [T]he power to exercise judgment and discretion; (2) the power to hear and determine or to ascertain facts and decide; (3) the power to make binding orders and judgments; (4) the power to affect the personal or property rights of private persons; (5) the power to examine witnesses, to compel the attendance of witnesses, and to hear the litigation of issues on a hearing; and (6) the power to enforce decisions or impose penalties.”
The court also noted that it is not necessary for a body to possess all six powers to be considered a quasi-judicial body.
Executive actions refer to the rights of the president of the United States, other members of the executive branch, and executive officers of a state to maintain confidential information and communications and resist outside oversight by other branches of government in relation to that information.
For example, in the 1941 Ohio case of Bigelow v. Brumley, a clergyman brought a defamation action against the governor of the Ohio General Assembly (the state legislature) after referring to him as a “paid lobbyist for the Single Tax Movement.” The court held that “officials appointed by the governor to prepare information to be distributed to the public concerning a proposed constitutional amendment in accordance with a statutory duty to do so were entitled to absolute privilege.”
The court further noted that the purpose of absolute privilege is to encourage government officials to perform important public functions in their official capacity without fear of being held liable for damages in defamation actions.
Commonly referred to as “common interest privilege,” qualified privilege is a less robust form of privilege that may be invoked in specific circumstances (and before a specific audience).
Unlike absolute privilege, which is far more limited in its scope of categories it extends to, a qualified privilege does not always extend to specific situations. Rather, a qualified privilege will apply to circumstances where communications are made in good faith to uphold a specific interest and the audience on the receiving end of the statement is limited in size/scope.
Said more simply, a qualified privilege enables a person to communicate or publish a statement for good reasons, to a small audience who they really think has an interest in knowing what the person has to say.
For example, qualified privilege cases in Ohio hold that the privilege protects statements and publications that:
- Were made in good faith;
- Uphold an interest;
- Are limited in scope and purpose;
- Made on a proper occasion; and
- Made in a proper manner and to proper parties only.
As qualified privilege is not as robust as an absolute privilege, it does not immunize persons who communicate or publish a statement with actual malice or reckless disregard. Qualified privilege is generally granted to persons in positions of trust and authority, who owe a social, moral, or legal duty to society.
Several common examples of qualified privilege include:
For example, in one New York defamation case, a court found that a newspaper editor’s comment that a columnist plagiarized a column in a communication to the editor-in-chief and the columnist was qualifiedly privileged because all of the parties shared a “common interest.”
Journalist Shield Law
Journalist shield laws are statutes that grant journalists either absolute or qualified privilege to refuse to testify at a legal proceeding and disclose confidential information and sources that were obtained in the course of newsgathering.
As of 2020, most U.S. states have journalist shield laws or other protections in place protecting journalists from being compelled to testify or produce confidential information obtained in the course of their newsgathering duties.
A statutory privilege is a privilege that is prescribed for and outlined by statute. Statutory privileges codify specific situations where a party may publish and communicate specific statements (including defamatory ones).
For example, Section 10.2 of Illinois’ Hospital Licensing Act creates immunity from civil liability for hospitals, hospital administrators, and hospital staff for the conduct of hospital peer review committees (and other committees) whose purpose is to improve patient care and quality.
Indiana on the other hand has a statute in place protecting persons that make statements to the Indiana Employment Security Division relating to claims of unemployment.
Fair Report Privilege
The fair report privilege is a privilege granted to persons and organizations that rely on legislative, administrative, and other official proceedings and reports and then publish the information contained within those reports in good faith. Also known as fair comment privilege, the fair report privilege exists to further an informed, democratic news media and the general public and fair criticisms of governmental activities.
Most states that recognize fair report privilege require that the person or organization that republishes the official information in question do so in a fair, complete, and accurate manner. Similar to the Substantial Truth Doctrine, which looks at whether the “crux” of an allegedly defamatory statement is substantially true, courts will typically analyze whether the republished report is substantially similar to the original report or document.
For example, fair report privilege will exist in Massachusetts “…’ if its “gist” or “sting” is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.”
Most states also require that the person or organization that republished such information properly attributes it to the source. Those who do not republish the manner in a complete, fair, or accurate manner will avail themselves to defamation liability.
Not all states recognize fair report privilege, so it is important to brush up on your state’s defamation laws.
Without the protection of fair report privilege in place, news media and other organizations would be prevented from writing about and publishing important information from official government records, administrative reports, and statements made by the government and public officials.
Common situations where fair report privilege applies include:
- Complaints made about public and government officials;
- Statements made by judges during a trial;
- Facts recorded in a police report and information obtained from police department press releases;
- Summaries contained in government documents and reports (court records, open meetings, and press releases).
Fair report privilege would most likely not apply to statements of gossip, draft reports and press releases, and other unofficial statements, documents, and reports.
Neutral Report Privilege
Commonly referred to as “neutral report privilege,” neutral reportage is a common law defense and privilege that protects persons and organizations who republish unverified facts and allegations concerning public officials and public figures.
Although neutral reportage is not widely adopted, it exists to protect journalists, news organizations, and other media companies that have an interest in reporting on important (and sometimes highly contentious) public issues. For the defense of neutral reportage to succeed, defendants must almost always prove that the reporting was both unbiased and in the public’s best interest.
Neutral report privilege is a limited exception to the hardline rule of republication, which holds a republisher of defamatory material just as liable as the original publisher of the defamatory statement(s). Without neutral report privilege, persons that publish statements that were communicated by another party, and subsequently found to be defamatory, would be held liable for the original defamatory communication.
Several examples where state courts have applied neutral reportage include:
- Statements and reports made by one public figure about another public figure.
- A land developer declaring another developer “unscrupulous” during a town meeting.
- A newspaper report alleging a political campaign brochure accused the county’s Italian-American judges of having ties to the mafia.
Neutral reportage privileges may also be invoked in cases where a news organization has reported on false and defamatory allegations made by one prominent public figure about another.
Statute of Limitations
A statute of limitations defense is one of the most important factors that a defamation plaintiff (and attorney) should first assess before filing an online defamation lawsuit. A statute of limitations is a time-limiting mechanism placed on legal actions and a plaintiff’s ability to bring them. It is in the best interests of a smooth-running judicial system that outdated cases with lacking evidence are not clogging the courts.
At a statute of limitation’s very core is the intent to create a just and fair legal system. Specifically, a statute of limitations promotes:
- Reasonable diligence by plaintiffs: As noted above, the U.S. legal system is already heavily bogged down and clogged with legal cases, therefore it is in the best interests of a well-oiled judicial system that plaintiffs do not file a lawsuit years after interest in adjudicating it has expired.
- Preservation of key evidence: Evidence is often misplaced or destroyed after a reasonable time, which can make for an uneven playing field should plaintiffs be allowed to bring their claim many years after a cause of action accrued.
- Elimination of “more cruelty than justice”: As a statute of limitations ensures that lawsuits are brought within a reasonable timeframe and that defendants receive sufficient notice of impending action, this ultimately eliminates “more cruelty than justice.”
For a more in-depth look at what the statute of limitations is, how long you have to file your defamation claim, and the most common exceptions to the statute of limitations that can extend the limitations period, make sure to check out this video.
When it comes to defamation lawsuits, the general rule is that the statute of limitations will begin running on the date that the defendant first publishes or communicates the defamatory statement(s). However, there is an exception to the general rule, known as the “discovery rule” which will apply when the subject of the defamatory publication only discovered it sometime after it was published.
The discovery rule varies by state. But it will generally prevent a statute of limitations from tolling until the date on which the subject of the defamatory publication actually discovered it, or should have reasonably learned of it. For example, a D.C. Circuit Court applied the discovery rule in a libel suit where defamatory emails were only sent to a “limited audience” and did not include the plaintiff.
Notably, this rule does not apply in online defamation cases because a key element to this exception is that the defamatory publication was not accessible to the Plaintiff by publicly available means. In most online defamation cases, content is publicly available via search engines and other tools, so this exception cannot be applied.
Single Publication Rule
The single publication rule is an exception to the general rule of republication and a time-limiting restriction placed on a defamation plaintiff’s ability to bring multiple defamation lawsuits for a single defamatory online publication. The single publication rule exists to prevent defamation plaintiffs from perpetually lodging defamation lawsuits against a defendant for subsequent publications of the same defamatory material that is essentially all part of the same publication.
However, substantial changes to the defamatory content or publication will give rise to an entirely new libel action. Small or immaterial changes to a defamatory publication on the other hand will not restart the statute of limitations in most U.S. states.
For example, in one New Jersey defamation case, an employer and professional rating website published a defamatory article and then later republished it with slight alterations. The court ultimately found that the changes made were not substantial enough to constitute a republication.
State By State Statute of Limitations
Most U.S. states boast a one to two-year statute of limitations for both libel and slander lawsuits. Slander law statutes of limitations are generally shorter than libel statute of limitations due to the spoken nature of the evidence. If you are the target of online defamation (libel), it is important to stay on top of your state’s statute of limitations timeframe as to not miss out on being able to file a libel lawsuit.
Below is a state by state chart of all U.S. state defamation laws and their respective defamation statute of limitations.
*Arkansas applies a one-year limit to slander actions and a three-year-limit to libel lawsuits.
**Rhode Island applies a one-year limit to slander actions and a three-year-limit to libel lawsuits.
*** Tennessee applies a six-month limit to slander actions and a one-year limit to libel lawsuits.
Innocent Construction Rule
The innocent construction rule is a legal principle that construes allegedly libelous and defamatory statements as “harmless” when the statement(s) is so ambiguous that it is capable of having both defamatory and non-defamatory interpretations. Courts need not strain to find an unnatural innocent meaning to a statement(s), but must adopt an innocent (non-defamatory) interpretation if it is reasonable.
The innocent construction rule requires courts to consider a written or spoken statement’s context in which it was published, the words at the heart of the statement(s) and their natural and obvious meaning, and their implications.
Most U.S. states recognize the innocent construction rule. However, there has been considerable confusion surrounding the application of the innocent construction rule as it presents “something of a paradox” – the paradox being the requirement that a court give both a natural and obvious meaning to an allegedly defamatory statement at the same time as an “innocent” one whenever possible.
Libel-Proof Plaintiff Doctrine
Defamation law recognizes certain plaintiffs that have such a low standing in society that a false statement or publication about them actually fails to cause damage to their reputation. This type of plaintiff is referred to as the libel-proof plaintiff.
Libel-proof plaintiffs are rare in today’s age, however, courts have found that libel-proof plaintiffs may exist in cases involving small-town drug dealers and habitual criminals. This is due to the community’s heightened familiarity with the person in question.
In the 2006 Massachusetts defamation case of Holland v. Kwiat, the defendant argued that the plaintiff in question was “libel-proof,” as he was already under indictment for a vicious murder at the time of the statements.
Incremental Harm Doctrine
The incremental harm doctrine is a rarely applied legal doctrine due to its limited scope and enables defamation defendants to skirt liability for statements that cause damage failing to exceed the harm caused by the non-actionable statements of the same publication. At the incremental harm doctrine’s core, if there is such little damage or actual harm felt by the plaintiff, then no actionable defamation claim shall exist.
Generally, if a defamation defendant can prove that the statement or publication in question would have the same effect on the plaintiff’s reputation (and the damage suffered) should the “defamatory section” be removed altogether, then a defendant will not be held liable for defamation.
For example, New York courts will compare the defamatory portions of a statement or publication versus the non-actionable portion to determine whether there is substantial harm and an actionable claim exists.
Not all U.S. states have adopted the incremental harm doctrine.
Consent is an absolute defense to a charge of defamation and will protect a defamation defendant from liability for publications or statements made that the plaintiff consented to. A person may give consent to another person in the form of words, actions, or other behavior (this includes inaction as well). Types of consent include:
- Expressed consent,
- Informed consent,
- Implied consent, and
- Unanimous consent.
When giving consent to another person, the consent giver may define the extent of the privilege given. If the limitations set by the consent giver are not adhered to and statements or publications are made outside of the defined consent scope, then the publisher may be liable for defamation.
Simply put, if a defamation plaintiff gave the green light to a defendant to publish or communicate a defamatory statement, then they cannot later sue them for defamation.
For example, in one Florida workplace defamation case, an employee who repeatedly asked for the reason he was terminated was prevented from suing for defamation after his employer answered, “Because of [your] criminal lifestyle.”
Wire Service Defense
The wire service defense is rarely used in the world of online defamation law defenses, as it provides immunity for news organizations and online media who publish statements received from “reputable news services” via wire service.
Not every U.S. state recognizes the wire service defense, therefore we recommend consulting an experienced Internet attorney for legal advice if you are unsure of whether it applies to your online defamation issue.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act (CDA) is a federally enacted law that provides immunity from liability for both providers and users of interactive computer services that publish information and content provided by third parties. Section 230 reads:
“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
When determining whether Section 230 immunity will apply to an interactive computer service, most U.S. courts apply a three-pronged test.
- The defendant must be a “provider or user” of an “interactive computer service”;
- The cause of action asserted by the plaintiff must treat the defendant as the actual publisher of the objectionable content; and
- The objectionable content must have in fact been “provided by another information content provider.”
If all three prongs of the immunity test are satisfied, then immunity will be absolute and a bar to suit.
For example, Section 230 of the CDA is the reason why you cannot sue Google for online defamation and other malicious content, as the content is posted to its platform by third parties.
There are however several notable exceptions to Section 230 of the Communications Decency Act, where immunity will not be granted to a website for content promoting or involving:
Section 230 of the Communications Decency Act does not protect interactive computer services against criminal prosecution under federal statutes. This means that websites that encourage and profit from crimes of sexual victimization of children, sex trafficking, online extortion, sextortion, cyberstalking, revenge pornography, and other forms of online harassment are not immunity from liability under Section 230.
Short for “Strategic Lawsuits Against Public Participation,” SLAPP suits are lawsuits filed against a person or entity to censor, burden, or intimidate them into abandoning their opposition. In most SLAPP lawsuits, plaintiffs generally do not expect to win their lawsuit, as their primary goal is to pressure a defendant into giving up their criticism or claim.
SLAPP lawsuits are an incredibly powerful defense. It is critical that a defamation victim contemplating litigation anticipate whether a defendant may initiate a SLAPP suit to pressure them into abandoning their claim.
Anti-SLAPP laws protect persons and entities from these frivolous lawsuits to ensure that freedom of speech is not impeded (or eroded). They also act as a safeguard to prevent the U.S. judicial system from being overloaded with frivolous defamation lawsuits. Common properties of Anti-SLAPP laws include:
- Enable a defendant to file an early motion to strike or dismiss the suit on grounds of protected speech;
- Stays all discovery (something that greatly reduces the costs of litigation for the defendant);
- Reimbursement of reasonable legal fees for the defendant;
As of May 2020, 30 states and the District of Columbia have Anti-SLAPP laws in their books protecting defendants from frivolous lawsuits. The states with Anti-SLAPP laws are:
- New Mexico
- New York
- North Carolina
- Rhode Island
- District of Columbia
The scope of each Anti-SLAPP statute can greatly vary by state, with some states having narrowly drafted statutes limiting actions to specific persons (ex. public applicants), and other states boasting statutes that may be broadly construed by courts.
For example, New York’s Anti-SLAPP statute is considered somewhat narrow as it is designed to protect parties against SLAPP suits which are brought by public applicants. California’s Anti-SLAPP is considered broader (and one of the strongest) and allows defendants to file a special motion to strike when the matter concerns itself with conduct that falls within the rights of free speech or petition.
Not all states have laws in place resembling that of an Anti-SLAPP statute. For example, as of 2020, Ohio does not have any Anti-SLAPP laws in place (or any laws resembling them). Ohio defendants may however file an abuse of process tort counterclaim in cases where they believe they are being frivolously prosecuted.