What to Expect if You’re Being Sued for Defamation and Common Defamation Defenses:

It’s a stressful enough thing to think about getting sued, let alone actually being served with court papers and summoned into a lawsuit. The lawsuit itself – the “Complaint” – probably includes scary and inflammatory language about what you are alleged to have done and, even worse, it probably includes a claim against you for a lot of money.

In this article, we will address some things you can expect if you are being sued – and specifically, being sued for defamation.

Before we get into the specifics of a defamation claim, there are a few things that apply broadly to all types of civil lawsuits. Of course it is always stressful to be sued. Nobody wants to get sued. The very process of it makes you feel like some kind of villain – as though you’ve done something horribly wrong. Additionally, it can be an expensive process. It’s no secret that hiring a lawyer costs money, and defending against a lawsuit can indeed be quite expensive.

However … If you are being sued, whether for defamation or anything else, take heart. You are not a villain, and there is hope out there.

First of all, our legal system in the United States is what is referred to as an “adversarial” system. As the term indicates, our system involves adversaries “battling” against each other. There is the Plaintiff (suing party) on one side, and the Defendant (sued party) on the other. This article is directed toward the Defendants out there – the folks who have been sued. In our adversarial legal system, the two opposing sides gather evidence and argue against each other, each seeking to show the judge or jury that theirs is the correct argument. So that inflammatory, very accusatorial language about you in the Complaint? That is merely the Plaintiff’s opening salvo. That is their accusation of legal wrongdoing by you. It is intended to sound egregious. It is intended to paint you as a villain. But you will have your chance to respond.

At this point, it bears urging that, if you have been sued, get help from a lawyer. A lawsuit is not an easy thing to navigate alone. If you have been sued, whether for defamation or anything else, call us today.

The Defamation Lawsuit

In our previous article (“Defamation 101”), we mentioned that defamation lawsuits seem to be everywhere these days. The internet surely bears some responsibility for that. But here we will suppose that you have been sued for defamation. We will call you Innocent Defendant.

A situation we see all-too-frequently these days is that someone (maybe you, our Innocent Defendant) writes a Facebook post about someone else, say “Peter Plaintiff.” Peter then gets angry about the post for one reason or another, and then the situation escalates to the point where Peter Plaintiff is suing you for writing the Facebook post. (This may sound generic, and even benign, but trust us when we say that a large portion of all of our defamation cases fit this pattern).

Without even taking into consideration the specific context of the Facebook posts or other circumstances of the case, take a breath and remember the phrase you’ve heard about our legal system over and over since you were a child: “Innocent until proven guilty.” This phrase applies in civil cases as well as criminal cases. If you have been sued, remember that the person suing you has the burden of proving that you actually did what they say you did. A court will not make any judgments or assumptions about your level of guilt or culpability without the Plaintiff proving the correctness of their arguments. (The only exception to this is if you simply ignore the lawsuit. If you don’t respond to a lawsuit within the time allowed, a court can and will find that you are liable by default. Do NOT ignore a lawsuit.)

The next thing to remember, if you have been sued for defamation, is a point we hinted at in our Defamation 101 article: Winning a defamation case, as the plaintiff, is hard. The plaintiff in a defamation case has the difficult task of not only proving that you did something wrong, but they also have to prove that they were harmed by it, and they have to demonstrate how much they were harmed by your actions. This is incredibly difficult to quantify. As discussed in Defamation 101, putting a dollar figure on our reputation is a hard thing to do. This results in a fairly effective defense in most defamation cases.

And while any defamation defense strategy will likely include some discussion of damages, a strong defamation defense strategy will typically include several other defenses, as well.

Truth: One of the most common defamation defenses is the defense of Truth. It’s an oft-quoted phrase in case law around the country: “Truth is a defense to defamation.” This makes sense if we recall what a claim for defamation is: Defamation is a false statement about someone that leads to harm to that person’s reputation.

So if we return to our generic example from above, we find Innocent Defendant writing a Facebook post about Peter Plaintiff. Peter gets mad about the post, the situation escalates, and Peter sues Innocent for defamation.

Now the content of the Facebook post becomes relevant. Let’s imagine that Innocent wrote: “Peter Plaintiff is a vile, thieving dog. He scammed my uncle Victor Victim out of thousands of dollars.”

In the lawsuit, Innocent claims the defense of truth, effectively saying: “It’s not defamation because Peter Plaintiff actually did scam thousands of dollars from my uncle Victor Victim.” There is some level of debate in Utah about whether the assertion of a “truth” defense shifts the burden of proof on that issue to the Defendant. That is, by claiming a truth defense, does Innocent Defendant now have the obligation to prove to the court that Peter is a thief? In Utah, the answer is “maybe.” Not the most helpful answer, sure, but it’s beside the point. If the statements made in Innocent Defendant’s Facebook post are true, then Peter Plaintiff’s defamation claim will fail. There’s nothing unlawful about writing (or speaking) true statements.

Privileged Statements: Our general definition of defamation from above (“Defamation is a false statement about someone that leads to harm to that person’s reputation”) needs a clarification:

Defamation is an unprivileged, false statement about someone that leads to harm to that person’s reputation.

So what is a privileged statement? Legally speaking, there are certain contexts in things that would otherwise be defamatory are protected. There are numerous different types of privileges. Some of them are what we call “absolute” privileges, and others are “qualified.” Absolute privileges always apply. For example, statements made while testifying as a witness in court are absolutely privileged. You cannot be successfully sued for defamation–even if the statements were, on their face, defamatory–if the statements were made in that specific situation. Qualified privileges apply only in certain circumstances. For example, if a statement concerns a matter of public concern, where it is important that the information be communicated, then the statement may be protected. Questions of qualified privilege are very fact-dependent, and will have to be carefully evaluated by a lawyer. Indeed, the question of whether a statement is qualifiedly privileged may consume a large portion of a defamation lawsuit.

Looking again at the statements made by Innocent Defendant about Peter Plaintiff:

“Peter Plaintiff is a vile, thieving dog. He scammed my uncle Victor Victim out of thousands of dollars.”

Innocent Defendant may try to argue that their statements are qualifiedly privileged. That argument would try to suggest that Peter Plaintiff’s conduct is a matter of wider public concern, and that others should be protected from his actions. But what about the statement that “Peter Plaintiff is a vile, thieving dog” ? Does that help or hurt Innocent Defendant’s argument for qualified privilege?

This leads to another common defense for defamation:

Statements of Opinion: Statements of opinion are not defamatory. Why? Because statements of opinion cannot be false statements. Opinions, by definition, are not assertions of fact. Peter Plaintiff can’t successfully sue Innocent Defendant if Innocent says “I think Peter Plaintiff has curdled mush for brains.” Even if Peter Plaintiff, as a matter of fact, does not have curdled mush for brains, no reasonable person could ever think that Innocent Defendant was offering an assertion of fact by saying otherwise.

So what about the statement in Innocent Defendant’s Facebook post that “Peter Plaintiff is a vile, thieving dog” ? Is that an assertion of opinion? Certainly that’s a defense that would be offered, but as with most things in law, there isn’t an obvious answer. On one hand, it seems Innocent Defendant was just expressing their frustration with and opinion of Peter Plaintiff. On the other, though, it sounds like Innocent may be calling Peter Plaintiff a thief – especially when taken in context with the rest of the post (“He scammed my uncle Victor Victim out of thousands of dollars.”). This is surely something that would be argued over in the course of the lawsuit.

In addition to these defamation defenses (damages, truth, privilege, and opinion) there are others that may apply in the specific context of your case. At Hepworth Legal we know how to defend defamation cases because we know how to win defamation cases. We know what works and what doesn’t. If you are being sued for defamation, please call us today.

Learn more about defamation here on our previous blog post: