What is Defamation? How Can I Defend a Defamation Suit?
A communication will be considered defamatory if, from a reasonable person’s perspective, it tends to lower someone’s reputation; was directed at the person alleging defamation; and was published to a third party.
If these elements are proven, the law presumes that the words are untrue and that the plaintiff has suffered damages. The onus then shifts to the other party to rebut these presumptions.
Conversely, a defamation claim can be defended on the grounds of justification, fair comment, or privilege.
Justification is established when the words are shown, on a balance of probabilities, to be truthful (although the literal truth of the words may not be sufficient if defamatory inferences can be drawn from the communication).
Fair comment is proven where, on a balance of probabilities, it can be shown that the communication was one of comment and not an assertion of fact. The communication must have been made honestly and in good faith on a matter of public interest, and not made with malicious intent.
Finally, privilege is a doctrine at common law which protects otherwise defamatory statements where the public interest in free and candid speech trumps the public and private interest in protecting individual and corporate reputation.
The law surrounding defamation can be complex, so if you are involved in such a claim, it is important to contact a lawyer to explore your options.