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If someone were to make a statement that was known to be false, and someone else makes a defamatory remark in response to that comment, is it considered libel?

Say you review a restaurant negatively and they reply by saying we have no record of you ever eating here. You know this to be untrue. If you replied back with a negative statement like "seems strange that a cash payment wasn't recorded in the books". Since this is not an out of the blue comment suggesting a business acts illegally but rather responding to a comment that is clearly trying to damage the credibility of your review, do defamation rules still apply?

2

Defamatory statements are not defined in terms of why a person makes them (otherwise, there would be no defamation because everybody comes up with some reason other than pure hatred).

In this scenario, the review is not defamatory, it is a statement of personal opinion (I presume there were no false accusations that the appetizer was a plate of dead rat). The response "we have no record of you eating here" implies that the reviewer is a liar so could be damaging, so you would have to prove that they did know that they have a record of the person eating there. It is not sufficient to prove that you did eat there. The statement that it "seems strange that a cash payment wasn't recorded in the books" is either false or an opinion (depending on what weight the word "seems" is given), but it is not damaging (unless there are strict cash-transaction rules in that jurisdiction and failure to report a cash sale along with customer ID is a crime). In a cash-outlawed jurisdiction, the statement does not clearly assert commission of a crime, but could be interpreted that way. In fact if the statement is taken to be true, it supports the statement that the restaurant has no record.

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Actually it seems like there is no defamation at all. The resturuant saying they have no record is not inherintly false, and the claim that reviewer was there could still be supported if a cash payment was made. Thus, the review is opinion, the statement of lack of record of the reviewer's visit is valid, and the statement that the reviewer paid in cash is equally valid.

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The examples given aren't very good, but the general rule is that two wrongs don't make a right. A person who is legally defamed and has a claim for damages against someone else for the defamation is not immune from liability to the person who defamed them if the person who legally defamed them retaliates in kind. In a lawsuit, a jury could find that both parties established claims against each other and assign dollar amounts to those claim for defamation.

If that happened in one lawsuit, the judgments would be set off against each other to established the final net judgment.

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