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A male celebrity has said to a tabloid newspaper he slept with a female celebrity when they worked in a production few years ago. The female celeb is now suing him for defamation as she says that this is false; she never slept with him.

If the male celebrity decided to say he can't remember the specifics for example where and when this alleged encounter happened, is that enough of a defence for the male celebrity or does he have to provide specifics of encounter to win this case.

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    Defamation laws differ significantly from country to country and sometimes within a country from some subnational government to another. The spelling choices in the post suggest England and Wales, but it isn't clear what jurisdiction is intended.
    – ohwilleke
    Commented Dec 15, 2022 at 22:13
  • Is there a difference between him saying he slept with her, and him saying she slept with him? Also, is the court less snarky then me and accepts the phrase slept with to equate with "sexual relations"?
    – Mazura
    Commented Dec 17, 2022 at 5:29
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    I don't see how him saying "I can't remember where/when it happened" constitutes any kind of a defense. Commented Dec 18, 2022 at 3:28

3 Answers 3

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There are a variety of reasons someone might not win a defamation case, some of which are defenses, and others of which are part of the basic prima facie case that every person pursing a claim must establish. The exact details vary significantly from jurisdiction to jurisdiction.

  1. The statute of limitations for bringing suit based upon the alleged statement has passed. Many jurisdictions have especially short statutes of limitations for defamation claims. For example, in Colorado, the statute of limitations for a defamation claim is just one year, while other civil claims have two to six year statutes of limitations.

  2. The quoted statement isn't actually what was said.

  3. The statement is not defamatory in nature (i.e. it doesn't tend to harm the Plaintiff's reputation).

  4. The Plaintiff's reputation is so bad that no further statement could harm it.

  5. The court lacks jurisdiction over the claim or the case is filed in the wrong venue.

  6. The statement was substantially true. Note that this is not a defense to all types of claims called defamation in all jurisdictions. Some jurisdictions prohibit certain kinds of inflammatory negative statements (e.g. about religious figures, monarchs, dead people, family members, or disabled people) without regard to their truth, in causes of action that are seen as a subset of defamation actions. For example, Germany's criminal defamation statute prohibits some kinds of speech that would be considered insulting or "fighting words", effectively imposing a standing of civility in every day contexts, that applies without regard to truth. U.S. law carefully distinguishes between remedies for fraudulent lies about someone, statements that are objectionable because they implicate privacy concerns, statements that are objectionable because a person has a contractual or particularized legal duty not to say negative things about a particular individual, and statements that are disrespectful and disorderly, but not all jurisdictions draw these careful and fine lines.

  7. In context, the statement could not reasonably have been understood to be true as opposed to puffing, hyperbole, or an opinion.

  8. Failure to prove damages in jurisdictions where this is required on claims where it is required (proof of damages is not required for libel or slander per se in some jurisdictions). Some jurisdictions allow only economic damages, others allow emotional harm damages, others allow punitive damages, some allow statutory damages, and some allow some but not all of these kinds of damages.

  9. The statement is privileged or subject to a qualified privilege (e.g. statements made to law enforcement investigators, by attorneys in litigation, in court documents, by legislators in legislative debate, etc.)

  10. The statement was false but believed in good faith and with a reasonable basis to be true at the time, and at the time of the litigation, the person making the statement acknowledges its inaccuracies or a sense in which a statement meant as true could be misunderstood.

  11. Some jurisdictions make retraction of full defense or a partial defense. Some jurisdictions even make a request for a retraction a condition precedent to bringing a defamation lawsuit in some circumstances.

  12. The person bringing the lawsuit doesn't meet their burden of proof at trial. Usually, the burden of proof is on the person making the claim, but truth is sometimes considered an affirmative defense which some jurisdictions place on the defendant to prove. The burden of proof could be quite relevant to the answer. Ultimately, if truth is an issue in a case, the finder of fact (jury or judge depending upon the jurisdiction and whether a jury is demanded) would have to decide what evidence is sufficient. There is no black and white rule that applies.

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    Should this answer be tagged united-states or common-law? Commented Dec 16, 2022 at 11:24
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    @Mindwin Neither. Some of these defenses could apply to non-U.S., non-common law jurisdictions. My goal was to spot issues in a manner that doesn't perfectly apply to any jurisdiction but also hits the main issues.
    – ohwilleke
    Commented Dec 16, 2022 at 18:37
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    There's also another possible defense: while the statement didn't turn out to be true, it was reasonable to publish under the circumstances. For instance, a newspaper running a story on government corruption with solid sourcing might not be liable even if it turns out that all the sources were liars.
    – cpast
    Commented Dec 16, 2022 at 19:07
  • @cpast Good point.
    – ohwilleke
    Commented Dec 16, 2022 at 19:51
  • Points 3. and 4. can be hard to prove or disprove and if there is significant money involved, it's very possible all of the court actions will revolve around those two points. The plaintiff will try to show evidence of the damage to their reputation and the monetary consequences of this damage, and the defendant will try to show that the plaintiff's reputation was already so bad that the defendant's defamatory statements didn't change that situation. I think that's what's currently going on in Nieman vs Carlsen.
    – Stef
    Commented Dec 18, 2022 at 16:01
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does he have to provide specifics of encounter to win this case.

Providing specifics is not decisive. I will assume you have in mind a jurisdiction in the US.

Since the plaintiff is a celebrity, under US defamation law she would be considered public person. This requires her to prove that any false statements were made with actual malice, which is the term for denoting that those statements were made (1) with knowledge that they were false, or (2) with reckless disregard of whether they were true.

The matter also involves issues of parties' credibility. A defendant might provide plenty of specifics and still fail to persuade the fact-finder (typically the jury) that the statements are true. Conversely, a defendant is likely to prevail over a plaintiff who is known as liar or gives inconsistent testimony.

A plaintiff whose reputation (in this case, on matters of chastity vs. promiscuity) prior to the defamatory statements is bad enough would be considered "defamation-proof", implying that the defendant's statements cannot significantly worsen the plaintiff's reputation.

The import or context of the statements might outweigh the sexual connotation that is typically associated with the expression "slept with X". In that case, the statements, even if false and defamatory, they would not be defamatory per se. This means that the plaintiff would have to prove that the defamatory statements caused her a particular harm (the term for that is special damages).

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[united-states]

Your case contradicts your title somewhat, because the rules change significantly when the defamation is about sexual virtue.

Defamation per se doesn't need to be proven

There is a special word for the case when the defamation is so inherently offensive that it offends general sensibilities. Calling someone a child molester is a contemporary example, but the classical textbook example was attacking the virtue of a respectable woman. Your example is dead-nuts on point there.

But of course, times have changed and that is no longer doom to a woman's social prospects.

There has to be a reputation to harm, though.

One defense against defamation is that the defamation didn't actually harm the person's reputation because that person did not have any reputation.

So the keystone of the actress's defamation claim was "the possession of a reputation prior to defendant's statement".

This could be complicated. I can think of one particular actress-singer who is an empowered feminist icon, who poses nude and is openly promiscuous... loved by liberals and whose marketability turns on that. That person would be greatly harmed by a claim from an openly misogynistic arch-conservative.

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