California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

A less common but no less important defense to a cause of action for defamation is the defense of consent. If the defendant can show that the plaintiff consented to the publication of the alleged defamatory statement or statements, it operates as a complete defense. In other words, defendant wins.

Under what circumstances has the doctrine of consent been successful? Well, I'm glad you asked.

In one case a school superintendent was demoted and requested a statement of reasons from the school board. The school board did so in a confidential letter, which included the allegation that the superintendent had taken part in distributing fake election flyers. Apparently the superintendent was not pleased so he submitted the letter to a newspaper and the newspaper published the letter.. The court held that plaintiff' consented to the publication of the letter.

In other instances a person may consent to a third party or an organization investigating him and publishing its findings. This would constitute consent as well.

In any event, consent is a form of absolute privilege. While it does not come up very often, It is a total defense. Therefore it is important for any practitioner to be aware of it in case it appears in a fact pattern.

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 The last several posts have focused on absolute privileges. Today we’re going to talk about the qualified privilege, which is a lot more common than you might think.

A qualified privilege essentially means what it appears to mean. It allows the publisher/speaker to make a statement that would otherwise be defamatory without being held liable for making the statement. In other words, it’s a defense. The catch is that the statement must be made without malice (otherwise the privilege never arises in the first place: a fine distinction but that’s precedent for you) and to an interested person.

There are three general situations when this privilege applies:

Common Interest: 

This is by far the most commonly invoked qualified privilege. This is where the publisher makes the alleged defamatory statement to a person who, quite simply, has a common interest in the subject matter of the statement. For example, suppose you are a member of a Homeowner’s Association and you write a letter to the Board expressing your disapproval for the Board President’s in rather harsh terms regarding safety issues. Obviously, you and other board members will have a shared interest in keeping the complex safe. Therefore, unless malice is present, the qualified privilege will overcome a claim of defamation.

Special Relationship: 

This is a statement made by “one who stands in such relation to the person interested as to afford a reasonable ground for supposing motive for the communication innocent.”

Request for Information:

The final category involves a statement made by one “who is requested by the person interested to give the information.” For example, in one case a court held that an employer had a privilege to make certain communications to the media about employees.

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Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

Defamation Defense: Legislative Proceeding

Defamation Defense: Other Proceedings

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Continuing on in our series on the defenses to a cause of action for defamation relates to statements made in a legislative proceeding. Like statements made in judicial proceedings, statements which are made in legislative proceedings are absolutely privileged pursuant to Civil Code section 47(b).

This defense applies to statements made by participants in state and local legislative bodies as well. But these sorts of defenses can be much broader than you think, which why it's usually best to hire a defamation lawyer (and that's NOT self-serving).  Let me explain.

In the case of Cayley v. Nunn (1987) 190 Cal.App.3d 300, the plaintiff sued the defendant for slander since the defendant allegedly circulated a petition for neighborhood support for the defendant's requested height variance. Since the defendant's remarks about the height variance and the plaintiff were made in preparation of the legislative proceeding and had a logical relationship to the proceeding, the communications were held to be privileged. Now to the average lay person, you would think that this kind of statement would not be privileged because it is not made "in a legislative proceeding." Obviously, this is not the case.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the "The Ultimate Beginner's Guide To Defamation Law."

Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

Defamation Defense: Judicial Proceeding

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Continuing in our series on defamation defenses, today we're going to cover the defense of statements made in a judicial proceeding, also known as the litigation privilege.

A publication made in a judicial or quasi-judicial proceeding is absolutely privileged.  Civil Code § 47(b). This means that  you cannot prevail in a libel or slander case if the statements are privileged. In other words, the law allows people to make certain statements in certain settings, e.g., in a judicial proceeding.

The following requirements are necessary to meet the litigation privilege:

1. the communication must be made in a judicial or quasi-judicial proceeding;
2. by litigants or other participants authorized by law;
3. to achieve the objects of the litigation; and
4. the communication has some connection or logical relation to the action.

Silberg v. Anderson (1990) 50 Cal.3d 205, 212.

The primary purpose of the litigation privilege is to allow litigants and witnesses the freedom to use the courts without being worried that they'll be harassed by subsequent lawsuits. The litigation also promotes a more effective judicial system because it allows lawyers to vigorously advance their client's interests.

In short, the litigation privilege is one of the most powerful defamation defenses. It is also one of the more complicated defenses.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the "The Ultimate Beginner's Guide To Defamation Law."

Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

Defamation Defense: Discharge of Official Duty

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An absolute privilege exists for statements made "[i]n the proper discharge of an official duty" under California Civil Code section 47(a). An absolute privilege is defined as a "privilege that immunizes an actor from suit, no matter how wrongful the action may be, and even though it is done with an improper motive."  Black's Law Dictionary, 7th Ed., p. 1215.

This means that any publication of a statement made by a person in the proper discharge of an official duty is absolutely immunized.

So when does this defense/privilege apply?

First, the statement must be made by a public official (in other words, only government officials). The official duty privilege does not apply to private individuals. For example, a court held that a district attorney was acting in the discharge of an official duty when he issued a press release regarding alleged violations of the Brown Act.

Second, the statement must be made in the public official's official capacity. If not, the privilege does not apply.

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What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

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Total read time: 2 minutes 49 seconds.

"The truth is incontrovertible, malice may attack it, ignorance may deride it, but in the end; there it is." -Winston Churchill

Truth is a complete defense to a claim of defamation.  

It is the great equalizer in any libel or slander suit. It is what the plaintiff's defamation lawyer fears the most; that what his client's accuser says is true. It does not matter that the defendant made the statement out of malice or out of bad faith, so long as the statement is true. Washer v. Bank of America (1948) 87 Cal.App.2d 501, 509; Campanelli v. Regents of Univ. of Calif. (1996) 44 Cal.App.4th 572, 581; Rest. 2d, Torts § 581A; Francis v. Dun & Bradstreet (1992) 3 Cal.App.4th 535, 540 (credit report, even one causing harm, is not defamatory if true); Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 953 (statements as to dentist's misconduct were true given Board of Dental Examiner's determination that dentist had been grossly negligent and in violation of provisions of Business and Professions Code).

So what does it mean to establish truth? Does that mean the defendant must establish the truth of his statements in every particular? Surprisingly, the answer is no.

It is sufficient if the defendant proves that the substance or the "gist" of the statement is true. Heuer v. Kee (1936) 14 Cal.App.2d 710, 714; Gantry Const. Co. v. American Pipe & Const. Co. (1975) 49 Cal.App.3d 186, 194 ("The concept that it is the gist or sting of the alleged defamatory statements that must be false rather than the specific details of the charge is deeply rooted in our common law."). Weller v. American Broadcasting Cos. (1991) 232 Cal.App.3d 991, 1009, footnote, 17; See Campanelli, supra (admission that plaintiff basketball coach engaged in tirades so bad that seven players were thinking of quitting established truth of defendant's assertion that players "were in trouble psychologically").

But who bears the burden of proof? The previous rule in California was that the plaintiff needed to plead that the statements were false. This is no longer required. The burden of pleading and proving that the statements are true rests squarely on the shoulders of the defendant. See Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 233.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a free copy of "The Ultimate Beginner's Guide To Defamation Law." 

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