Defaming a business or a person will often result in the filing of a defamation lawsuit. But that does not mean that the person bringing the lawsuit will win. Depending on the facts of the case, a serious and successful defense to a defamation lawsuit can be mounted. You will, of course, need to hire experienced and courtroom-proven defamation defense attorneys like the ones here at Revision Legal. Call us at 231-714-0100. We handle cases across the country.

What is defamation?

Defamation can be either written or verbal. The first is called libel, and the second is called slander. In general, for either type of defamation, the person suing — called the “plaintiff” — must prove the following legal elements:

• A false statement was made — either in writing or verbally
• The statement was not privileged in any way
• Made with at least negligence with respect to the truth or falsity of the statement
• The statement was published by the maker of the statement to at least one third party
• The false statement injured the “target” of the statement in some way, like damaging their reputation, injuring them in their trade/occupation, etc.

For some types of defamation, the final element need not be proven. These are called per se defamatory statements. These per se statements include false statements charging a person/business with a crime, impugning a person’s chastity, suggesting a person is diseased, and more.

In addition, for public figures, there is an additional legal element that must be shown: either a knowingly false statement or a statement made with reckless disregard for the truth.

What are Some Defenses to a Defamation Lawsuit?

From the foregoing, we can see several potential legal defenses to a defamation lawsuit. First, as many know, “truth is an absolute defense.” Thus, if it can be shown that the statement was not false, then such will be a successful legal defense.

Second, the statement that is alleged to be false must be a statement of fact. In general, this means that the statement must be a statement that can be verified as true or false. Consequently, statements of opinion and statements that are a form of “puffery” will not constitute defamation. Likewise, mistake and/or materiality can sometimes be a viable defense.

Third, some statements are privileged which means that no defamation lawsuit can be filed with respect to those statements. Examples include statements made in court filings and statements that are authorized and approved by the “target.”

Fourth, while rare, it is sometimes possible to defend a defamation case on the basis of lack of publication. For example, if you send a letter only to the “target,” that is not defamation since there was no publication to a third party. It is still not defamation even if the target shares the letter with others. The publication must be made by the person making the alleged false statement.

Fifth, depending on the applicable law, retraction and/or correction can be a legal defense.

Sixth, if the case involves a public figure, then lack of malice is generally a method of successfully defending against defamation. In fact, public figures find it very difficult under U.S. law to win defamation cases because knowledge or reckless disregard is difficult to prove.

Finally, note that a defense based on the lack of damage or injury is almost never successful. Where damages are not obvious, it is common for the plaintiff to ask for “nominal” damages. Such “nominal” damages might only be $10, but that is enough for the plaintiff to “win.” And in most jurisdictions, if the plaintiff is successful, the plaintiff can be awarded their attorneys’ fees (which can be substantial).

Contact Revision Legal

For more information, call the experienced Defamation Defense Team at Revision Legal today for assistance. You can contact us through the form on this page or call (855) 473-8474.

The Anti-SLAPP Defense: A Powerful Litigation Tool

One of the most effective procedural defenses available in defamation litigation is the anti-SLAPP motion. SLAPP stands for “Strategic Lawsuit Against Public Participation.” Anti-SLAPP statutes — enacted in approximately 31 states and the District of Columbia — allow a defendant to file an early motion to dismiss a defamation lawsuit when the lawsuit arises from protected speech on a matter of public concern. If the motion is granted, the case is dismissed and the defendant can recover attorney’s fees and costs. The threat of a fee award frequently causes plaintiffs to abandon meritless defamation claims early in litigation.

California’s anti-SLAPP statute, Code of Civil Procedure § 425.16, is among the broadest and most frequently invoked in the country. Texas enacted the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.001 et seq., which similarly permits early dismissal of defamation claims arising from the exercise of free speech. New York’s anti-SLAPP law was significantly strengthened in 2020 to allow fee-shifting against not just frivolous plaintiffs but against any plaintiff whose suit is determined to lack a substantial basis. Understanding which state’s anti-SLAPP law governs — and how to invoke it effectively — requires experienced defamation defense counsel.

Section 230 of the Communications Decency Act

For businesses that operate online platforms, Section 230 of the Communications Decency Act, 47 U.S.C. § 230, provides a powerful defense against defamation claims based on content posted by third-party users. Under Section 230, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In plain terms, if a third party posts a defamatory statement on your website, review platform, or social media page, Section 230 generally immunizes you from liability for that statement.

Section 230 immunity has limits. It does not protect a platform that substantially contributes to the defamatory content — for example, by editing the content in a way that materially alters its meaning. Courts have also recognized that Section 230 does not apply where the platform develops the content itself. The leading case expanding Section 230’s reach is Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), which established that platforms cannot be treated as defamation defendants merely because they were given notice of defamatory content and failed to remove it. However, this protection is under significant legislative and judicial scrutiny, and the scope of Section 230 may change. Experienced defamation defense attorneys monitor these developments closely.

Statute of Limitations as a Defamation Defense

The statute of limitations is a frequently overlooked but powerful defamation defense. In most states, the statute of limitations for defamation is one to two years from the date of the defamatory statement’s first publication. California provides a one-year statute under Code of Civil Procedure § 340(c). New York likewise has a one-year limitations period under CPLR § 215. Under the “single publication rule,” adopted in most states and codified in the Uniform Single Publication Act, the statute of limitations begins running when the defamatory content is first published — not each time a new user reads it. This rule, when properly applied, can bar claims based on old online publications even when those publications remain accessible on the internet.

Some courts have recognized a “discovery rule” exception under which the limitations period does not begin running until the plaintiff discovers or reasonably should have discovered the defamatory statement. Defamation defense attorneys must evaluate which rule applies in the governing jurisdiction and whether any discovery rule exception might toll the limitations period. In many cases, a limitations defense alone can resolve the litigation at the motion to dismiss stage without requiring a full merits defense.

Damages Considerations in Defamation Defense

Even when a defamation plaintiff can establish the elements of their claim, effective defamation defense includes challenging the damages alleged. Categories of defamation damages include:

• General damages — compensation for injury to reputation that is presumed to flow from the defamatory statement, available in per se defamation cases without proof of specific monetary loss
• Special damages — specific, quantifiable economic losses such as lost business contracts or lost employment that must be pleaded with particularity
• Punitive damages — available only upon proof that the defendant acted with actual malice or common law malice; the constitutional limitations on punitive damages articulated in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003), apply in defamation cases

Defense counsel should scrutinize damage claims carefully. Plaintiffs frequently exaggerate economic losses or conflate reputational harm that predated the alleged defamation with harm the defendant allegedly caused. Expert testimony on business valuation, comparable market data, and alternative causation can be essential components of an effective defense.

Contact Revision Legal for Defamation Defense

A defamation lawsuit — even one without merit — can be expensive, time-consuming, and reputationally damaging if handled poorly. Revision Legal’s defamation defense attorneys bring courtroom experience, deep knowledge of anti-SLAPP procedural strategy, and a track record of successfully defending clients from meritless claims. If you have been served with a defamation complaint or received a threatening demand letter, call us at 231-714-0100 or visit our contact page. Time matters in defamation cases — defenses like anti-SLAPP motions must be raised quickly.