Because a viable claim for defamation only arises with the publication of false assertions of fact, truth is a defense that can be and commonly is asserted in court.
Substantial truth is the recognized standard. Absolute truth is not required. So long as the statements at issue are substantially truthful, minor inaccuracies alone are insufficient to support a claim.
Generally, for a plaintiff to succeed in a defamation lawsuit, the statements at issue must at least be capable of verifiable falsity. Therefore, even if a statement is false, if there is no method of proving the statement to be false, a defamation claim will be difficult to pursue.
The analysis sometimes depends on the context of the statements. For instance, the defamatory nature of terms such as ‘blackmailer,’ ‘traitor,’ ‘crook,’ ‘steal,’ and ‘criminal activities’ can vary depending on the context in which they are published. The actionability of those statements will depend on whether they are false assertions of fact or merely exaggerations typically used in public commentary.
Many states also recognize defamation by implication or innuendo. In that scenario, a statement may appear to be true but the intended implication or innuendo is false. Since it is that implication or innuendo which is the statement the publisher is intending to communicate, then the statement may be actionable.
But when the statements are substantially true with no false implication intended, then no matter how damaging they may be to your reputation, no viable claim for defamation presents. That is not to say that truthful statements can not give rise to some other cause of action, such as a privacy tort. But defamation is reliant on falsity. No falsity, no defamation.
In this article, we will discuss the principles of defamation and explain how truth is a defense to defamation claims.
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What is Defamation & Why is it Unlawful?
Defamation laws protect society’s pervasive and strong interest in preventing and redressing attacks upon reputation caused by false and defamatory statements. As U.S. Supreme Court Justice Stewart aptly stated in 1966, the law’s protection of reputation from defamatory falsehoods reflects no more than “our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.”
Defamatory speech is not constitutionally protected because such statements interfere with the truth-seeking function of the marketplace of ideas, and they cause damages to an individual’s reputation that cannot easily be repaired.
Despite our society’s utmost respect for the free speech principles of the First Amendment, it is equally important to recognize that the Constitution cannot be used as a shield to unequivocally immunize defamatory speech, regardless of where it is published and by whom. Free speech rights do not and never were intended to close the courthouse doors to those harmed by the communication of a falsehood.
The long-established and recognized claims for judicial relief are more important now than ever given the emergence of an Internet age which allows for the weaponization of defamatory and other unprivileged speech to a degree never previously imagined. With just a few keystrokes, the entire world is one’s audience in perpetuity and a single lie can far too easily result in continuing and irreparable injury.
What Are the Types of Defamation?
There are two types of defamatory speech: libel and slander. Libel refers to any defamatory statement that is published in a written form. If the defamatory speech consists of oral statements, then it is slander. Some complications and confusion can arise when defamation is published in another form, such as an image or video.
It is important to understand the difference between the two types of defamation because a well-pleaded complaint will assert the correct form of defamation. Asserting the wrong form could result in prejudice to the claims being pursued.
Elements of Defamation
If you are considering filing a defamation lawsuit (or you are being sued for defamation), it is critical to understand the elements of a defamation claim.
As defamation laws are a state-by-state issue, these elements may have some slight variation amongst the various jurisdictions. But the core elements are largely the same no matter where the lawsuit is pending, and the recognized constitutional defenses and privileges apply in all jurisdictions (state and federal).
A defamation claim typically requires: (1) a false and defamatory statement concerning the plaintiff, (2) published by the defendant without privilege to a third party, (3) with fault amounting to at least negligence, and (4) either the statement was defamatory per se or the publication caused special harm to the plaintiff.
Can an Opinion Be Defamatory?
Opinion is a form of protected speech and an absolute defense to defamation. A claim for defamation requires that the defendant made a false statement of fact (not an opinion) about the plaintiff.
For instance, if John Doe falsely states that Mark Smith “was convicted of theft,” the statement is certainly capable of a defamatory meaning. If, however, John Doe simply says, “in my opinion, Mark Smith is a thief,” is that an opinion protected under the First Amendment? That would seem to be the answer. But it is not so simple.
The U.S. Supreme Court explained the following in the landmark decision of Milkovich v. Lorain Journal Co.:
“If a speaker says, ‘In my opinion John Jones is a liar,’ he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, ‘In my opinion Jones is a liar,” can cause as much damage to reputation as the statement, ‘Jones is a liar.’
As the Ohio Supreme Court itself noted: ‘The clear impact in some nine sentences and a caption is that [Milkovich] ‘lied at the hearing after . . . having given his solemn oath to tell the truth.’ . . . This is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression.”
Many states have closely followed Milkovich while others have rejected it. Careful analysis by an experienced defamation attorney is required to determine whether a claim is viable in any given jurisdiction.
Perhaps the best guiding principle, regardless of jurisdiction, is that an opinion is a statement that cannot be verified as either true or false. A statement of fact, no matter how framed, is capable of verification.
When is a Statement Published?
To be considered “published” for the purpose of a defamation claim, the statement must simply be communicated to a third party. If a statement was only communicated from the defendant to the plaintiff, then no claim for defamation can be made because there can be no damage to reputation.
Courts routinely find that uploading defamatory statements to the internet satisfies the publication element.
What Level of Fault is Required?
A false statement can be published to a third party resulting in damage to reputation, but if the publisher was not at least negligent as to whether the statement was true or false, then no liability for defamation results.
“Negligence” is the failure to exercise the ordinary care of a reasonable person in similar circumstances.
However, many defamation claims, especially those involving issues of public concern or cases brought by public figures, will require a showing well beyond negligence. Under the commonly applied heightened standard, a plaintiff must prove by clear and convincing evidence that the defendant acted with actual malice.
Actual malice, not to be confused with express malice (ill-will, spite), is present when the defendant either knew the statement was false or acted in reckless disregard as to truth or falsity.
Must a Plaintiff Prove Damages?
For a statement to be considered defamatory, it must result in damage to the plaintiff’s reputation. Certain statements can be classified as defamatory per se, which means that some level of damage to reputation can be presumed.
Common examples of defamation per se include false accusations of criminal conduct or loathsome diseases. The most common form of defamation per se is a false statement which has a natural tendency to harm an individual’s reputation in his/her industry, trade, or profession.
Conversely, defamation per quod claims involve statements for which extrinsic evidence is required to demonstrate the defamatory meaning and damage to reputation. For such claims, damages must be proven with more specificity.
Truth as a Defense to Defamation
“Substantial truth” is an absolute defense to defamation. Under the substantial truth doctrine, courts will look at the “gist” or “sting” of a statement. If the “gist” or “sting” of the publication is substantially true, then no liability for defamation can be established. Trivial inaccuracies will not change that result.
For example, if I say, “You were speeding at 20 mph above the speed limit,” but you were only going 15 mph above the speed limit, my statement is substantially true. Ultimately, the statement is true that you were speeding, even though I had the degree of speed slightly wrong.
What is the Substantial Truth Doctrine?
The affirmative defense of truth does not require that every single detail of the alleged defamatory statement is true. Minor inaccuracies are commonplace in our daily vernacular. The substantial truth doctrine protects individuals from legal liability for publishing statements with minor or immaterial inaccuracies as long as the gist of the statement(s) is true.
In an illustrative example, one California court was tasked with determining whether a patient defamed a dentist through a negative online review. In the review, the patient made errors in the timeline of events, but the court found that the core message of the review was substantially true and, therefore, not actionable.
In a case out of Iowa, a newspaper was sued after publishing an article about a farmer convicted of fraud. The article mistakenly alleged that the farmer “received more than $100,000” when, in fact, the fraud was discovered before the farmer received the money. Upon review, the Iowa court considered the fact that three out of four sentences about the farmer were undisputedly true and the publication, when read as a whole, was determined to not be defamatory.
Who Has the Burden of Demonstrating the Truth or Falsity of the Statements at Issue in a Defamation Lawsuit?
Truth is an affirmative defense to a claim of defamation which must be asserted by the defendant in a responsive pleading. Normally, litigation defendants have the burden of proving their affirmative defenses.
In many cases, a defamation defendant does have the burden of establishing truth of the statements. However, in cases which require a showing of actual malice, the burden is placed on the plaintiff to prove falsity.
Can Legal Liability Result from the Publication of a True Statement?
While truth is a defense to claims for defamation, it can be an essential element of other claims. For instance, several states recognize a claim for publication of private facts. A private fact must, of course, be a fact.
Contractual obligations, ethical duties, and other considerations may also give rise to claims for relief from the publication of truthful information.
For example, non-disclosure agreements can lawfully limit free speech. Other confidentiality rules, such as those applicable to certain professions, can also limit one’s ability to freely broadcast the truth on a certain subject.
What About the Fair Reporting Privilege?
The fair reporting privilege bars recovery if the publication is a fair and true report of matters of public record or of a record generally available to the public.
Whether the publication reported on is true or not is irrelevant for purposes of this privilege, so long as it accurately reflects the public record at the time of the publication.
Finding Your State’s Laws on Defamation
Although all states recognize the tort of defamation and the substance of the claim is largely the same from state to state, there are many notable differences to consider prior to filing or defending a defamation lawsuit.
What Resources are Available to Find Your State’s Defamation Laws & Defenses?
The attorneys at Minc Law have, to date, authored more than 22 guides to state defamation laws. For more information, review our Complete Guide to Online Defamation Law, which lists each of our state guides to defamation.
We have also created an article on finding the defamation requirements in your state, which we recommend reading for comprehensive state defamation laws.
State Specific Laws on Truth as a Defense to Defamation
While truth is a constitutional defense to defamation that applies no matter what state the lawsuit is pending, some states have case law or statutes which give specific guidance or expanded scope as to truth as a defense.
In Arizona, a statement is substantially true if viewed “through the eyes of the average reader.”
Colorado applies the substantial truth doctrine in a very traditional manner. As long as the statement is substantially true, even if it contains minor inaccuracies, it will not be considered defamatory.
In non-public figure cases, Florida previously required a defendant to prove that the statement is not only true, but was published with good motives. However, in 2014, a Florida court held that the “good motives” standard no longer applies and substantial truth alone is a complete defense to defamation.
Truth is a complete defense under both Georgia’s state constitution and by state statute. Georgia courts will look to the entirety of the statement for truth, as “statements cannot be considered in isolation to determine whether they are true or false.”
In Michigan, “defendants in defamation suits are not required to prove the statement is literally and absolutely accurate in every minute detail.”
Pursuant to statute in Pennsylvania, statements that contain falsities are not actionable as defamation “so long as any inaccuracies do not render the substance and ‘gist’ of the statements untrue.”
The above list is far from exhaustive. Each state has at least developed precedent relative to the substantial truth doctrine.
How an Experienced Attorney Can Help You Assess Your Defamation Case
If you think you may have a claim for defamation, it is important to consult with an experienced attorney. Defamation is a complex legal issue. There are many factors which must be considered to determine both the viability and strength of your potential claim.
An experienced attorney can assess your case and identify any possible defenses that the other party may raise, including but not limited to truth or opinion.
If you are considering filing a defamation lawsuit, an experienced attorney is an invaluable asset. If you would like more information about hiring a defamation lawyer, check out our guide on the subject.
What is a Defamation Attorney?
A defamation attorney is a lawyer who represents individuals who have been the victim of false statements damaging to their personal or professional reputation. This can include online defamation when false and damaging statements are communicated or published on the internet.
An online defamation attorney can help to remove these false statements and, if desired, help pursue a lawsuit against the person who published the statements.
Why Should You Hire an Attorney?
If you or your business is the target of defamation, it can be a very difficult and stressful experience. In addition to the emotional damage, there can also be significant financial repercussions. Lost wages, damage to reputation, and other costs can all add up quickly.
As a result, it is important to consult with an experienced attorney who can assess your case and help you determine the best course of action. It is imperative that you speak with an attorney who is well-versed in defamation law.
Most lawyers concentrate on specific areas of the law, like criminal law, estates and trusts, or family law. When you are faced with defamation, you need to speak with an expert in defamation law.
Likewise, if you are dealing with online defamation, you need to speak with an experienced internet defamation attorney. This is because online defamation often involves other related areas of law, such as copyright law, online harassment, privacy laws, stalking, and extortion. Experienced internet defamation attorneys can spot these intersections and come up with the best legal strategy to tackle your specific issue.
There are many benefits to hiring an online defamation attorney, including:
- Expertise in an emerging and nuanced field of law;
- Knowledge of technology and digital platforms;
- Experience with online crimes, such as extortion; and
- Ability to remove unwanted online content.
How to Select & Hire a Defamation Attorney
When victimized by defamation on the internet or elsewhere, the first step is to consult with an experienced defamation attorney. Defamation law is too difficult for most laypersons to navigate on their own. An attorney can help you understand your legal options and work to take immediate action to protect your reputation.
There are many national and state-wide resources for finding an attorney, such as:
- Online databases like Avvo, Martindale-Hubbell, Lawyers.com, FindLaw, and SuperLawyers.com,
- Your local bar association,
- Your local legal aid society, and
- Referrals from family, friends, and co-workers.
We recognize that those databases can be overwhelming, so we have compiled several articles to help you find a stellar defamation attorney. Review our guides for a list of some of the top defamation lawyers in Ohio, New York, and throughout the United States.
Once you have found a few potential attorneys, schedule consultations with several so that you can get a better sense of their experience and expertise.
We recommend asking the following questions at a minimum:
- How long have you been practicing?
- How much experience do you have with defamation law? What is your success rate?
- Have you been the subject of disciplinary action?
- What are your fees, and how will I be charged?
- What additional costs may be involved beyond your fees?
- How often will I be billed?
- How will you inform me of developments in my case?
- How often and regularly can I expect updates on the status of my case?
At Minc Law, our litigation practice group focuses exclusively on defamation and related claims. We have extensive experience both filing and defending defamation suits.
“Obtaining this legal representation saved our buisness. Minc Law represented and defended us against defamation so our customers didn’t have to. Minc Law gave us a voice and Daniel Powell made sure we were heard and considered in each part of the process. He also provided practical advice that helped us avoid a snowball effect, and added a human element while dealing with social media organizations.”
April 12, 2022
If you are ready to speak with an experienced defamation attorney, you can reach out to our team via Chat or contact form. You can also call us to schedule your initial, no-obligation legal consultation with an intake specialist at (216) 373-7706, speaking with a Chat representative, or filling out our online contact form.