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.