Minor Factual Discrepancies Won’t Support Defamation Action

You may have heard that truth is a complete defense to an action for libel or slander. This is essentially correct, but it would be more accurate to say that to win a defamation case, the plaintiff must be able to prove that the statements at issue are false. In other words, the burden of demonstrating falsity lies with the person bringing the case; the defendant does not need to prove that the statements were true. If the jury finds that the odds of a defamatory statement being true are exactly 50-50, the defendant wins, not because “truth is a complete defense,” but because the plaintiff failed to convince the jury that the statement was false.

So if you’re a prospective plaintiff considering suing someone for defamation, you need to understand that you’re not going to win unless the words that were spoken or written about you are false. And when I say “false,” I mean that the part of the statement that is hurtful or offensive–the “sting” of the statement–needs to be false in all material respects. If the stinging words are substantially true, forget litigation. Filing a lawsuit is only going to invoke the Streisand Effect and bring more attention to the situation, resulting in further harm to your reputation.

Notice that I said, “substantially true” and not “completely” or “100%” true. If you consult with a defamation lawyer about whether you have solid grounds to sue, one of the first questions you’ll be asked about the statement you’re concerned about is whether the assertions made about you are true. The lawyer doesn’t want to know whether you are able to spot minor inaccuracies in the statement by scrutinizing every word, interpreting them in new and unusual ways, and drawing absurd inferences from them. If you robbed a liquor store and stole a bottle of The Macallan 55-year-old single malt scotch but the local paper inaccurately reported that all you took was a bottle of their 10-year-old variety, you’re not going to have a strong case because although the report about you is technically false in some respect, the gist of the statement–that you robbed a liquor store–is true.

Lisa Perry, former Economic Development Director for Isle of Wight County, learned this lesson the hard way when her defamation claim against former Supervisor Delores “Dee Dee” Darden was dismissed a few days ago. Here are the facts, according to the allegations in her pleadings:

Perry was injured in 2014 and took several months off from work under the the Family and Medical Leave Act. Her leave was to commence on June 27, 2014 and end on July 31, 2014, “with doctor’s approval.” Her doctor extended her leave to August 4, 2014, truthso she did not return to work on August 1st as originally contemplated. Instead, she showed up on August 4th, and was told that she had been terminated for failing to report to work on August 1st.

The Tidewater News ran a story about Perry’s job loss in which they quoted Supervisor Darden as saying that “Perry was due back to work last Friday, but she didn’t show up or let anyone know why” and “part of the leave agreement was that not returning to work as agreed mean that the job would not be held for her.”

The court held that Perry had not alleged sufficient facts to present a valid dafamation claim. Why? For the most basic of reasons: by Perry’s own admissions, the statements about her were substantially true. Perry admitted that she did not show up for work on August 1st “or let anyone know why.” She argued that the statement was false because her doctor had effectively extended her leave period by a few days, but the court rejected this argument because the “substance” of Darden’s statement–the “sting,” if you will–was that Perry didn’t show up on the date indicated on her leave request without any communication with her employer, and that part of the statement was unquestionably true.

If you’re contemplating filing a lawsuit for libel or slander, ask yourself: “Am I upset because someone has publicized information about me that I was hoping to keep quiet, or because someone has made a completely unjustified accusation about me with no basis in fact?” If the former, suing for defamation will accomplish nothing more than increasing the very exposure you’re trying to limit.

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