Defamation Defenses FAQ

Yes, truth is an absolute and complete defense to defamation in California. Under California law, a statement cannot be defamatory if it is true, regardless of how damaging the statement may be to the plaintiff's reputation. The defendant bears the burden of proving truth as an affirmative defense. This reflects the fundamental principle that defamation law protects reputation from false statements, not from accurate but unflattering information.

California Civil Code Section 45a implicitly recognizes truth as a defense by defining libel in terms of false statements. The truth defense applies even if the defendant's motives were malicious or the statement was published to cause harm. A defendant who can prove their statements were substantially true will prevail, even if some minor details were inaccurate.

Courts apply the substantial truth doctrine, which holds that a statement is not actionable if the gist or sting of the statement is true, even if peripheral details are incorrect. For example, if someone accurately reports that a person was arrested for assault, minor errors about the exact date would not defeat the truth defense if the core fact is accurate.

Yes, pure opinions are protected from defamation claims in California under the First Amendment and the California Constitution. Only false statements of fact can be actionable defamation; statements that are clearly expressions of subjective opinion rather than assertions of objective fact are constitutionally protected. California courts apply the totality of the circumstances test to distinguish between fact and opinion, considering factors such as the specific language used, whether the statement is verifiable as true or false, the context in which the statement was made, and whether a reasonable reader would interpret it as stating fact or opinion.

Statements that are clearly hyperbolic, rhetorical, or figurative are generally protected opinions. However, a statement phrased as an opinion can still be actionable if it implies false underlying facts. For example, stating "in my opinion, John embezzled company funds" implies the factual assertion that John committed embezzlement.

Context matters significantly: statements made in settings understood for robust debate, such as online forums or political discussions, are more likely to be viewed as opinion. California courts have recognized that internet communication often involves hyperbole and rhetorical flourish that readers understand as opinion rather than fact.

Absolute privilege provides complete immunity from defamation liability for certain communications, regardless of the speaker's intent or the falsity of the statements. Under California Civil Code Section 47(a) and 47(b), absolute privilege applies to statements made in legislative proceedings, judicial proceedings, and other official proceedings authorized by law. This includes statements by parties, witnesses, attorneys, judges, and other participants in legal proceedings, as long as the statements have some connection to the proceeding.

The rationale is that participants in these proceedings must be free to speak without fear of defamation liability to ensure the proper functioning of the legal system. California courts have interpreted the litigation privilege broadly to encourage open communication in legal matters. The privilege attaches to communications made in connection with pending or contemplated litigation, including prelitigation demand letters and communications with attorneys.

The absolute privilege also extends to statements made to governmental agencies in the course of official proceedings. Unlike qualified privileges, absolute privilege cannot be overcome by proving malice or improper purpose. Even knowingly false and malicious statements made in covered proceedings are protected.

Qualified privilege, also known as conditional privilege, provides protection from defamation liability for certain communications made in good faith to persons with a legitimate interest in the information. Unlike absolute privilege, qualified privilege can be lost if the plaintiff proves the defendant abused the privilege by acting with malice. California Civil Code Section 47(c) establishes qualified privilege for communications made without malice to a person interested in the subject matter, by one who is also interested, or to a person who requested the information.

Common situations involving qualified privilege include employment references, where employers provide information about former employees to prospective employers; internal business communications about employees to supervisors, HR, or other appropriate personnel; communications to law enforcement about suspected criminal activity; and reports to licensing boards or regulatory agencies about professional misconduct.

To overcome qualified privilege, the plaintiff must prove the defendant acted with actual malice, meaning they knew the statement was false or acted with reckless disregard for its truth. The privilege may also be lost if the defendant exceeded the scope of the privilege by publishing to persons without a legitimate interest.

The fair report privilege protects accurate reports of official proceedings and public records from defamation liability, even if the underlying statements reported are false and defamatory. Under California Civil Code Section 47(d), a fair and true report of any judicial, legislative, or other public official proceeding is privileged. This privilege enables the press and public to report on government activities and legal proceedings without fear of liability.

To qualify for the fair report privilege, the report must be a fair and accurate summary of the official proceeding or record. The report does not need to be verbatim but must convey the substance of the proceeding without material additions, distortions, or omissions that would change the meaning. The privilege does not protect reports that add commentary or accusations beyond what was stated in the official proceeding.

California courts have applied the fair report privilege to news reports about court cases, police reports, government hearings, and other official proceedings. The privilege extends to reports of charges and allegations made in legal proceedings, even if those charges are later proven false. The rationale is that the public has a legitimate interest in knowing what occurs in official government proceedings.

Yes, consent can be a defense to defamation in California. If the plaintiff consented to the publication of the allegedly defamatory statement, they generally cannot later claim defamation. Consent operates as a waiver of the right to sue for defamation. The consent defense may apply in various contexts. Express consent occurs when a person explicitly authorizes the publication of information about themselves. Implied consent may be found when a person's conduct indicates they agreed to the publication.

For example, a person who provides information to a reporter with knowledge it will be published may be found to have consented. However, the scope of consent matters. Consent to publish certain information does not authorize publication of additional false statements or publication to audiences beyond those contemplated. Courts analyze whether the defendant's publication fell within the scope of the plaintiff's consent.

The consent defense also intersects with authorization in employment contexts. An employee who authorizes an employer to provide references may be found to have consented to the publication of truthful information in that context. California courts apply contract principles to analyze consent, considering whether consent was voluntary, informed, and not obtained through fraud or duress.

The innocent construction rule is a doctrine followed in some states that requires courts to give allegedly defamatory statements an innocent interpretation if one is reasonably possible, and to dismiss defamation claims if the statement is capable of an innocent meaning. California does not follow the innocent construction rule. Instead, California applies the reasonable interpretation standard.

Under California law, courts determine whether the statement, taken in context and as understood by a reasonable reader or listener, conveys a defamatory meaning. If the statement is reasonably susceptible to both a defamatory and a non-defamatory interpretation, the question of which meaning was conveyed is typically a factual issue for the jury to decide.

This approach differs from the innocent construction rule, which would require the court to adopt the innocent interpretation as a matter of law. California courts consider the totality of the circumstances, including the language used, the context of publication, and the understanding of the audience. The reasonable interpretation standard is more favorable to plaintiffs than the innocent construction rule because it does not automatically dismiss claims when an innocent interpretation exists. However, California's approach still requires that the defamatory meaning be one a reasonable person would draw from the statement.

The First Amendment imposes significant constitutional limitations on defamation claims in California, balancing protection of reputation against free speech values. Key First Amendment limitations include the actual malice standard for public officials and public figures, established in New York Times Co. v. Sullivan, which requires these plaintiffs to prove the defendant knew the statement was false or acted with reckless disregard for its truth. This elevated standard reflects the importance of robust debate on public issues.

Additionally, the Constitution protects statements of opinion, hyperbole, and rhetorical expression that a reasonable person would not interpret as stating actual facts. California courts must distinguish between protected expression and actionable false statements of fact. The First Amendment also informs California's anti-SLAPP statute, which provides procedural protection for speech on matters of public interest.

Furthermore, constitutional concerns limit the scope of injunctive relief in defamation cases, as prior restraints on speech face heightened scrutiny. Courts must carefully craft any orders to avoid unconstitutional restrictions on expression. These First Amendment protections apply in California courts as incorporated through the Fourteenth Amendment, and the California Constitution provides additional free speech protections.

The wire service defense protects news organizations that republish defamatory content from recognized news services or agencies, provided certain conditions are met. Under this doctrine, a newspaper or broadcaster that republishes a story from a reputable wire service like the Associated Press may avoid liability if it did not know the story was false and had no reason to doubt its accuracy.

California courts have recognized a version of the wire service defense based on the principle that requiring every media outlet to independently verify every wire service story would be impractical and would chill the flow of news. The defense reflects the reality that news organizations necessarily rely on wire services for coverage of events beyond their own reporting capacity.

To successfully assert the wire service defense in California, the defendant typically must show that the source was a reputable news service, the defendant accurately republished the content without material alteration, the defendant did not know the content was false, and the defendant had no reason to doubt the accuracy of the content. The defense may not apply if the defendant had information suggesting the story was inaccurate, if the defendant added its own defamatory content, or if the defendant republished content from a source that was not a recognized news agency.

When a defamation defendant files an anti-SLAPP motion under California Code of Civil Procedure Section 425.16, the plaintiff must demonstrate a probability of prevailing on the merits to avoid dismissal. This requires the plaintiff to show their claim has minimal merit. To defeat an anti-SLAPP motion, the plaintiff should present admissible evidence establishing a prima facie case for each element of defamation, including falsity, publication, fault, and damages.

The plaintiff must show the statements are false statements of fact, not protected opinion or hyperbole. The plaintiff should demonstrate that any privileges asserted by the defendant do not apply or have been forfeited through abuse. Evidence of actual malice, if relevant, should be presented. The plaintiff should also show damages or establish that the statements qualify as defamation per se.

Procedurally, plaintiffs should be prepared to file substantive opposition supported by declarations and documentary evidence, as anti-SLAPP motions are decided early in litigation before discovery. If the anti-SLAPP motion is granted, the plaintiff may appeal. If the motion is denied, the defendant may appeal immediately under California's interlocutory appeal provision for anti-SLAPP rulings. Understanding the anti-SLAPP procedure is critical for both plaintiffs and defendants in California defamation cases.