Defenses to Defamation

California law recognizes a number of defenses to defamation claims. Some of the most major defenses to defamation are:

• Truth: proof that a defamatory statement is true is a complete defense because falsity is an essential element of both slander and libel.

• The alleged defamatory statement was merely a statement of opinion not fact: only false statements of fact or opinions that insinuate that they are based on undisclosed defamatory facts are actionable.

• Retraction: in cases involving publication of a libel in a newspaper or of a slander by radio broadcast, if a defamer retracts the allegedly defamatory statement that often will serve as a defense to any defamation lawsuit, especially if the defamer also apologizes.

• Lack of publication: lack of publication is a complete defense because publication is an essential element of both slander and libel. To prove the element of publication, the defendant must have uttered or distributed the defamatory statement to east least one person other than the plaintiff.

• Privilege: California law recognizes two types of privileges, the absolute privilege and the conditional privilege, both of which may immunize an employer from liability if he or she can show that certain criteria are met.

Of these defenses, perhaps one of the most frequently argued by employers is the privilege defense. Future posts will discuss this defense in more detail and the distinction between the absolute privilege and the conditional privilege.

Sticks and stones may break my bones, but words can destroy my reputation

June 2014 – In an article published in Advocate: Journal of Consumer Attorneys Associations for Southern California, partner Iris Weinmann gives an overview of defamation claims, especially defamation by employers against employees.

View the full article

What qualifies as actionable defamation: fact vs. opinion

Not every false, offensive, and mean-spirited remark will justify a defamation suit. It is not enough that a statement is inherently hurtful and injurious to your reputation. For it to be actionable, a statement must assert or at least imply a false fact about you. A mere expression of opinion is not actionable under California defamation law unless it insinuates that it is based on some undisclosed defamatory facts. See Okun v. Superior Court (1981) 29 Cal.3d 442, 451-52.

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What is the statute of limitations for defamation and when does it begin to run?

California’s statute of limitations for defamation is one year.  Cal. Code of Civ. Proc. § 340(c).  Because the “rule of discovery” applies to defamation, the one year statute of limitations does not begin to run until the defamed victim actually discovers or reasonably should have discovered the defamatory statement.  This means that even though a defamatory statement may have been made about you two, three, four or more years ago, you may still have an actionable claim for defamation so long as you file a lawsuit within one year of discovering that this defamatory statement was made about you.

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My employer has published false critisism about my work performance. Does California law allow that?

The publication, whether oral or written, of false criticism of poor performance, incompetence, or dishonesty—whether made in the context of a performance review or as the employer’s stated reason for the employee’s termination—is defamation per se. Employers often argue that they are immune from liability for these statements based on the defense of “conditional privilege,” which grants immunity against defamation for communications made on subjects of mutual interest (i.e. publisher makes the defamatory statement to a person who has a common interest in the subject matter of the statement).

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California Employees Defamation Blog

December 2013 - Greenberg & Weinmann launches the California Employees Defamation Blog to shed light on the reputational and privacy rights of employees.

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