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Libel: Defenses

Truth is generally a complete bar to recovery by any plaintiff who sues for libel. Making sure that any potentially libelous material can be proven true can avoid needless litigation.

Fair report. Libelous statements made by others in certain settings often are conditionally privileged if the reporter, in good faith, accurately reports information of public interest. This privilege usually applies to official meetings such as judicial proceedings, legislative hearings and grand jury deliberations.

Neutral report. Although less broadly recognized, this privilege can protect the publication of defamatory statements made by one public figure about another public figure. The report must be presented in a neutral manner.

Opinion is still protected speech under the First Amendment, although the Supreme Court limited the formerly broad reach of opinion protection in Milkovich v. Lorain Journal.¹² The court ruled that there is no separate opinion privilege, but because factual truth is a defense to a libel claim, an opinion with no "provably false factual connotation" is still protected.

As a result of this decision, courts will examine statements of opinion to see if they are based on or presume underlying facts. If these facts are false or defamatory, the "opinion" statements will not be protected.

Consent. If a person gives permission for the publication of the information, that person cannot later sue for libel. However, denial, refusal to answer or silence concerning the statement do not constitute consent.

The statute of limitations for bringing libel suits varies from state to state. Generally the time limit for filing a libel lawsuit starts at the time of the first publication of the alleged defamation. If the plaintiff does not sue within the statutory time period, the litigation can be barred.

Although a retraction is not usually considered an absolute defense to a libel claim, it may reduce the damages a defendant must pay if found liable for defamation. Before agreeing to publish a retraction, consult an attorney.

Anti-SLAPP statutes, which permit early dismissal of lawsuits that chill the exercise of free-speech rights, may help news organizations defend some libel suits. SLAPP stands for "strategic lawsuit against public participation," and anti-SLAPP statutes protect those engaged in debate about controversial matters from lawsuits that would deter the exercise of their constitutional rights.¹³

Notes

12. Milkovich v. Lorain Journal, 497 U.S. 1 (1990).

13. See, e.g., Lafayette Morehouse, Inc. v. The Chronicle Publishing Co., 44 Cal. Rptr. 2d 46 (Cal. App. 1995) (holding anti-SLAPP statute protects newspaper from meritless libel suit), cert denied, 117 S.Ct. 53 (1996); Briggs v. Eden Council for Hope and Opportunity, 969 P.2d 564 (Cal. 1999) (holding speech made in connection with an "official proceeding" is made in connection with a "public issue" for purposes of anti-SLAPP statute).

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