Absolute Privilege (Tort)

Simply because someone defames another person does not mean that a lawsuit will be successful. There are a number of defenses to defamation claims. If the defamer can successfully claim one of these defenses, he/she might be able to win the case despite the defamation.

The major defenses to defamation are:
•the allegedly defamatory statement was merely a statement of opinion
•consent to the publication of the allegedly defamatory statement
•absolute privilege
•qualified privilege
•retraction of the allegedly defamatory statement.

Let’s look at some of these defenses in a little more detail.

Truth is an absolute defense to defamation. Remember that defamation is a false statement of fact. So, if the statement was accurate, then by definition it wasn’t defamatory.

Once again, defamation is a false statement of fact. For this reason, a statement of opinion cannot be defamatory. However, simply because you might phrase a statement as a statement of opinion does not automatically mean that it will be interpreted as a statement of opinion for purposes of defamation law.

Let’s look at an example to see why this is so. Let’s say that you told someone, “I think that Harold beat up his girlfriend last Saturday,” and, as a result, Harold lost his job and most of his friends. You might say that you were only giving your opinion; you didn’t say, “Harold beat up his girlfriend.” You qualified it by saying “I think.” But simply adding “I think” or “I believe” to an otherwise straightforward statement of fact does not necessarily make something a statement of opinion.

In a defamation lawsuit, a jury will be instructed to look at all of the circumstances surrounding the uttering of the defamatory statement, including how well you knew the person defamed, how well you knew the person you said the allegedly defamatory statement to, how precise the allegedly defamatory statement was, and why you made that statement. If, putting it all together, a jury believes that you were really making a specific statement of fact and hiding it as a supposed statement of opinion, you will be found liable for defamation.

Absolute Privilege

Certain types of communications are absolutely privileged. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, even if it is defamatory. In other words, the person making the defamatory statement is immune from a defamation lawsuit.

In general, absolute privilege exempts persons from liability for potentially defamatory statements made:
•during judicial proceedings
•by high government officials
•by legislators during legislative debates
•during political broadcasts or speeches, and
•in between spouses.

So, if someone makes an otherwise defamatory statement during his/her testimony at a trial, that statement is absolutely privileged, and that person cannot be sued for defamation. But if that person makes a different allegedly defamatory statement in the hallway of the courthouse during a break in the trial, he/she could be sued for defamation because the statement was made during a judicial proceeding.

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