Defamation Privileges and Defenses

As a general rule, if you follow good journalistic practices and standards -- being thorough, fair, and accurate in what you publish, carefully attributing your sources and quotes, and not phrasing statements in such a way as to create implications that you do not intend or do not have the evidence to support -- this will minimize the likelihood that you will be successfully sued for defamation (honing these good habits has other benefits as well, as they will make your work more accurate and credible).

There are times, however, when even the most careful publisher can be sued for defamation. In such a situation, a number of defenses may be available to you depending on what you published and the source(s) you relied on for the information. The most important defense is "truth." If the statement at issue is substantially true, a defamation claim cannot succeed because you have a right to publish truthful information even if it injures another's reputation. But truth is not the only defense that may be available. For example, if you publish a defamatory allegation made by a party in a lawsuit, even if it turns out that the allegation is false, a defamation claim against you cannot succeed because you have a right to report on allegations made in court regardless of whether they are true. Similarly, statements by legislators on the floor of the legislature, or by judges while sitting on the bench are typically privileged and cannot support a cause of action for defamation, even if they turn out to be false.

Sometimes the reliance on these sources may result in the publication of defamatory falsehoods, but in publishing the information you are performing the vital civic function of making information available to the public and of playing a watchdog role with regard to the government and other interests in society. To deal with the tension between the possibility of defaming individuals and the importance of reporting the news and information in a timely manner, courts have developed a number of defenses which often called "privileges" by lawyers. Keep in mind, however, the privileges described below are not available in all circumstances or in every state, so you should also review your state's specific law in the State Law: Defamation section of this guide.

Possible privileges and defenses include:

  • Substantial Truth: "Truth" is an absolute defense to an action for defamation. Even if you are not sure that what you've published is true, you should read this section.

  • Opinion and Fair Comment Privileges: Statements of opinion generally cannot support a cause of action for defamation, even if they are outrageous or widely off the mark. A defense similar to opinion is "fair comment on a matter of public interest." If the mayor is alleged to be involved in a corruption scandal, expressing your opinion that you believe the allegations are true is not likely to support a cause of action for defamation.

  • Fair Report Privilege: This very important privilege may apply if you relied on a public document or a statement by a public official for the incorrect information, made clear that the public document or statement was your source, and fairly and accurately used the source.

  • Neutral Reportage Privilege: The neutral reportage privilege covers unverified accusations made by one public figure about another on a matter of legitimate public interest, such as when a politician who opposes a health care bill says that the bill's sponsor is taking money from the pharmaceutical industry.

  • Wire Service Defense: If you republish information from a reputable news source (such as the Associated Press) you may be entitled to the wire service defense if it turns out that the information was false.

  • Statute of Limitations: If the plaintiff has waited too long to file a lawsuit, the defamation claim might be barred by the statute of limitations, which sets the maximum amount of time plaintiffs can wait before bringing a lawsuit after the events they are suing over have occurred.