Once you have determined that no privilege bars your claim for defamation, you must then look and see if any other defenses unrelated to privilege apply. First, if you were to consent to the statement’s publication, regardless of whether it was defamatory, and regardless if it was otherwise unprivileged, you would not be able to pursue an action.
One of the other frequently litigated issues in these actions is whether or not the statements are “true.” As I previously mentioned, truth is a complete defense to an action for defamation. Even if what the speaker says is highly disparaging and damaging, and even if it is published to harm the subject of the statement, if the statement itself is true there is no claim. When this issue is in dispute, the truth of the statements frequently becomes the primary issue litigated, and the focus typically centers on the conduct of the Plaintiff. Clearly, in such instances, it is very important that there be no truth to the defamatory statements. If there is even a shred of truth to the statement, it is very important to weigh that fact before bringing the claim, as any even partial truth could easily lead to the loss of the case.
Michael L. Kitchen
Disclaimer: This blog is for information purposes only. Legal advice is provided only through a formal, written attorney/client agreement.