If you’re a public figure who’s had something false and defamatory published about them, and your reputation or livelihood is damaged, should you file a lawsuit?
The first post explained the basics of defamation, slander and libel.
This post is a look at some of the defenses you have to hurdle to win such a case.
Opinion versus Fact
This is tricky. Many things that may seem slanderous or libelous are really a matter of opinion.
You can't say or publish things about a person that are libelous per se, that are assumed to be damaging. That includes things like saying they've been convicted of a crime of "moral turpitude," have a sexually transmitted disease, are being unfaithful to their spouse and so forth.
But you can call a politician a dirty rotten whatever -- that's your opinion. You can say nasty, foul and rotten things about an actor or pro athlete, using all of the FCC's seven dirty words, and that's pretty much protected by the First Amendment as free speech.
Fair Comment
There's wide latitude for comments about public matters. This typically refers to political candidates and government officials. You don't get a pass by saying things about Tom Cruise and saying it's fair comment on a matter of public interest.
Truth as a Defense
Another defense is truth -- that whatever the media outlet published is in fact true.
This is what boomeranged on Oscar Wilde, when he sued Lord Alfred Douglas -- the Marquis of Queensbury and the father of his lover -- for saying that Wilde was "a sodomite."
Suing for libel didn't work out so well for Wilde. Lord Douglas used truth as a defense. And since sodomy was a crime back then in England, not only did Wilde lose after a series of trials, he was then convicted of gross indecency and did two years of hard labor in prison. Wilde had been at the height of his fame. After his release from prison, he fled to France, where he died, in poverty, at 46.
Libel Proof
This defense says the alleged victim's reputation can't be further damaged because it's already in tatters.
Not Disseminated
It's not considered defamatory if the person who said something -- even if it's not factual, malicious and damaging -- only said it to the victim, say in a one-on-one meeting, over the phone or behind closed doors. The courts don't consider that "published."
Absolute Privilege and Qualified Privilege
Many countries and court systems protect speech and information as having absolute privilege if it is (a) given as evidence or testimony in open court or (b) said in an open session of parliament or another legislative body.
This is to protect reporters for reporting what happens in open court and government.
Qualified privilege is a related concept, protecting journalists when there's a public interest involved in having these facts known. This typically involves government documents and public meetings, but it doesn't protect against things published with actual malice.
Do any of these defenses apply?
If there's still a clear-cut case to possibly take to court, you should look at the PR costs versus the PR benefits before talking to attorneys.