Privileges and Other Legal Defenses to Defamation Lawsuits

Defamation is a civil wrong in which one person makes a statement of fact about another person that is false, causes harm, and is shared with someone other than the subject of the statement. Libel refers to false statements that are written or published, while slander refers to false statements that are spoken. Courts generally require proof that the statement was false, rather than an opinion or a clearly exaggerated statement that no reasonable person would understand as factual. Defendants may raise a variety of arguments in an effort to avoid liability.

Truth

If the defendant shows that the statement at issue is true or substantially true, a defamation claim will generally fail. Minor inaccuracies that do not alter the overall thrust of the statement usually do not defeat the truth defense, as long as the gist of the statement is accurate.

Opinion

Statements of pure opinion that cannot be proven true or false are usually not actionable. A speaker cannot shield false statements of fact by merely labeling them as opinion, so courts examine whether a reasonable person under the circumstances would interpret the statement as a subjective viewpoint or as an assertion of fact.

Absolute Privilege

Absolute privilege offers complete immunity from defamation lawsuits, regardless of falsehood or harm. This privilege extends to judicial proceedings, where statements by judges, attorneys, witnesses, and parties involved in a case are protected when the statements are relevant. Legislators who speak in official legislative sessions or committee meetings and certain high-ranking executive branch officials acting within the scope of their duties may also enjoy an absolute privilege.

Qualified Privilege

Some statements are protected under a qualified privilege that applies when the speaker and the recipient share a legitimate interest or duty related to the subject matter of the statement. An example may arise when an employer offers a reference about a former employee. This privilege is lost if the statement is made with actual malice or if the speaker provides the information to parties who do not share the interest or duty.

Consent

If the plaintiff consented to the publication of the defamatory statement, they typically cannot bring a defamation action for that same publication. Consent may be express or implied, depending on the circumstances, such as intentionally allowing the statement to be gathered for publication.

Anti-SLAPP Laws

Anti-SLAPP laws exist in some jurisdictions to curb frivolous defamation lawsuits aimed at discouraging individuals from speaking on matters of public concern. A defendant who successfully shows that a defamation lawsuit is being used to silence lawful speech may obtain an early dismissal of the case, and some jurisdictions allow the defendant to recover legal costs as well.

Retractions and Corrections

Some states permit defendants to mitigate or avoid liability if they issue a prompt and clear retraction or correction of the false statement. Courts may consider whether the defendant took steps to address the harm swiftly, which can reduce damages awards or, in some instances, lead to the dismissal of the claim.

Internet and Social Media Defamation

Online platforms raise additional issues in defamation law. Although individuals remain accountable for defamatory content they create and share, certain online platforms may not be liable for user-generated content. The content’s ongoing availability can complicate questions of when the statute of limitations begins to run, and confirming a poster’s identity can become a significant hurdle for plaintiffs.

Last reviewed May 2025