Can a true statement be defamatory?

Question

Can a true statement be "defamatory"? I know that truth is a defence to a defamation action, in that no liability will generally result if what you have communicated is true, but is it incoherent or an oxymoron to speak of a defamatory yet true statement?

^{I am not asking whether a true statement can be the basis of liability in defamation. This question is moreseo a question of legal terminology; how courts conceive of the elements of defamation; and the distinction between a defamatory statement, its truth or falsity, and a completed defamation action.}

Answer 1

Yes. True statements can be defamatory, as "defamatory" essentially means only that a statement tends to cast someone in a negative light.

If someone has done something to cast themselves in a negative light, then, it would therefore make sense for a court to acknowledge statements about that conduct as being both true and defamatory, although such a statement typically cannot support defamation liability. See, e.g., Montgomery v. Risen, 197 F. Supp. 3d 219, 240 n.13 (D.D.C. 2016) ("Only in the rarest cases have courts permitted liability in a defamation action based on a true and defamatory statement."); Welch v. Eastern Band of Cherokee Indians, 6 Cher. Rep. 20, P24 ("Taking this statement to be both true and defamatory ... it still may not be actionable if the Defendant is protected under the doctrine of absolute privilege.").

And although it definitely the minority position, there are even some common law courts that will premise liability on statements that are defamatory but true. See, e.g., Noonan v. Staples, Inc., 556 F.3d 20, 28 (1st Cir. 2009) (“under Massachusetts law, even a true statement can form the basis of a libel action if the plaintiff proves that the defendant acted with "actual malice."”)

And further back in time, a statement that was "defamatory yet true" would have been considered even worse than a statement that was defamatory but false, "because it was more provacative, thereby increasing the tendency to breach of the peace or exacerbating the scandal against the government". Levy, Leonard W., Emergence of a Free Press. United Kingdom: Oxford University Press, 1985 ,p. 12.

Further, certain statements might be literally true but defamatory by implication or by omission. For instance, a newspaper story saying "Ms. Newton shot Ms. Nichols after walking in on her with Mr. Newton" may be defamatory if Ms. Newton walked in on Ms. Nichols, Mr. Newton, and several other people having a pleasant discussion around the dinner table, rather than walking in on Ms. Nichols and Mr. Newton having sex. Memphis Pub. Co. v. Nichols, 569 S.W.2d 412, 419-20 (Tenn. 1978) (“The clear implication of the article is that Mrs. Nichols and Mr. Newton had an adulterous relationship and were discovered by Mrs. Newton, thus precipitating the shooting incident. ... The published statement, therefore, so distorted the truth as to make the entire article false and defamatory. It is no defense whatever that individual statements within the article were literally true.”)

Answer 2

I agree with the other answers that a "defamatory" statement is one that damages someone's reputation whether or not it is true (and hence in many cases not legally actionable). "Defamatory" is a close synonym of "disparaging" (and one can contactually agree to refrain from making disparaging but true statements about someone else, something usually done in connection with a settlement agreement related to a dispute).

In modern U.S. law, the First Amendment usually makes truth an absolute defense in cases involving public figures and matters of public concern, and arguably, more broadly.

This said, sometimes true statement that imply false statements or present someone in a false light can give rise to legal liability because they are used in a misleading way.

For example, if you accused someone of killing their brother in a way and context that strongly implied a homicide or a death caused by culpable negligence, when in fact, the person turned off life support for their brother pursuant to a living will and the brother also had a DNR (do not resuscitate) order, that could conceivably be defamatory if presented with an intent to mislead.

But, this is a fairly modern legal position the only came to be true in the later part of the second half of the 20th century.

Historically, certain kinds of truthful statements could give rise to criminal libel convictions. These cases were reflects in Colorado's criminal defamation statute before it was legislatively repealed in 2012 (and after some, but not all, of these provisions were declared unconstitutional). It said before it was repealed:

18-13-105. Criminal libel.

(1) A person who shall knowingly publish or disseminate, either by written instrument, sign, pictures, or the like, any statement or object tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue, or reputation or expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule, commits criminal libel.

(2) It shall be an affirmative defense that the publication was true, except libels tending to blacken the memory of the dead and libels tending to expose the natural defects of the living.

(3) Criminal libel is a class 6 felony.

Thus one exception was to speak ill of the dead, even if the statement was truthful.

The other exception was to "expose the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, or ridicule," in the sense that it would be traumatizing by and towards whom it would be an incivility to state publicly those defects - like calling someone with a severe developmental disability a retard, or perhaps calling someone born out of wedlock a bastard.

This section's imposition of liability for truthful statements was held to be invalid insofar as it reached constitutionally protected statements about public officials or public figures on matters of public concern under both the state and federal constitutions, but not where one private person has disparaged the reputation of another private individual. People v. Ryan, 806 P.2d 935 (Colo. 1991). The law was clear that this was the case far earlier, but there were no prosecutions in which to test the constitutional of the case for a long time.

Historically, criminal liable also often required proof that the person making the statement had an intent to provoke a breach of the peace. Leighton v. People, 90 Colo. 106, 6 P.2d 929 (1931).

Likewise, some cases had a character akin to contempt of court, and punished "words published in a newspaper, which tend to impeach the honesty and integrity of jurors in their office" apparently without regard to the truth. Byers v. Martin, 2 Colo. 605, 25 Am. R. 755 (1875) (Byers with the proprietor of one of Colorado's leading newspapers at the time and there is still a neighborhood in Denver named after him).

Very few cases where ever prosecuted under either of those prongs of the statue, in part out of doubt about their constitutional validity.

Another exception is noted in another answer from Noonan v. Staples, Inc., 556 F.3d 20 (1st Cir. 2009). That case applied Massachusetts law in a diversity case, makes clear that imposing liability for damaging someone's reputation out of ill-will with a truthful statement. But this was a fairly marginal federal court interpretation of state law (citing state court decisions that seem to contradict this conclusion but reasoning around it), and makes clear that it doesn't apply under clear U.S. constitutional law in matters of public concern or when a public figure is involved. Also, the defendant wasn't permitted in that case to argue on appeal that the U.S. Constitution prohibited imposing defamation liability for truthful statements made about private individuals in matters that were not public concerns because the issue wasn't raised in the trial court - so the precedent does not preclude a future litigant from asserting that position in a later case.

Generally speaking, however, those categories of defamation liability no longer exist in U.S. law.

Answer 3

A true statement may be defamatory. The question of truth is distinct from the question of whether a statement is defamatory. This is similar across common-law jurisdictions.

There is a "two-staged analysis applicable to the tort of defamation, by which the defamatory character of the impugned words is considered at the first stage, and justification or truth only at the second" (R. v. Dhillon, 2014 BCSC 1986 (affirmed by 2019 BCCA 373)).

Raymond E. Brown explains as follows, in his leading text on defamation, after referring to the numerous judicial remarks that defamatory statements are by their nature untrue:

This is not technically correct. Whether words are or are not defamatory has nothing to do with whether they are justified. As Williams J. observed in Coughtrey v. Evening Star Co. (1902), 21 N.Z.L.R. 116 at 121 (S.C.): “The question whether the statement is defamatory is distinct from the question as to whether it is true. A statement is none the less defamatory because it may be true; only, if it is true, no action will lie.”

[Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed., loose-leaf (updated 2013), (Toronto: Carswell, 1994), vol. 3 ch 10 at 10-7.]

In Canada, for example, a statement is defamatory if it "would tend to lower the plaintiff’s reputation in the eyes of a reasonable person" (Grant v. Torstar Corp., 2009 SCC 61). Again, this is separate from the question of truth.

Even in the US, where falsity is an additional element of the claim to be asserted and proved by the plaintiff, that element is still distinct from the question of whether the statement is defamatory. See for example, Pegasus v. Reno Newspapers, Inc., 118 Nev. 706 (Nev. 2003)

The general elements of a defamation claim require a plaintiff to prove: "(1) a false and defamatory statement...

Thus, many defamatory statements cannot make out a successful action in defamation because the defamatory statement is true.