Truth is an Absolute Defense to Defamation

David A. Szwak

Truth is an Absolute Defense to Defamation

Postby David A. Szwak » Thu Nov 03, 2005 6:07 pm

Lackland v. National Business Factors Collection Agency
963 F.2d 379
1992 Westlaw 111118
[9th Cir.[Cal.]] May 19, 1992.

Lackland challenged the court's entry of summary judgment on her claim against Ward for libel or slander. Lackland's claim is based on her assertion that Ward slandered her by wrongfully reporting to credit reporting agencies that the status of her account was "charged off." Again the court was proper in granting Ward's motion. The unrefuted evidence indicates that Lackland's account was in fact "charged off" as uncollectible after she failed to make payments for eight consecutive months.

Since the contents of the reports Ward made to credit agencies were truthful, as a matter of law Lackland's claim that she was libeled must fail.

Lackland contends that the court erred in granting appellees' motion to dismiss her claim under the FCRA. The court left for trial the issue of whether or not Ward obtained a copy of Lackland's credit report after the filing of this action under "false pretenses" within the meaning of the FCRA.

On the date set for trial, however, Lackland appeared with no witnesses, allegedly because she believed that the trial had been "vacated." The judge properly determined that neither of the two witnesses Lackland intended to call could offer admissible testimony. Although the court twice suggested that Lackland take the stand and testify on her own behalf, she refused in both instances. Moreover, when the court prompted her to offer the credit report into evidence she declined to do so.

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 10:57 pm

76 F.Supp.2d 1312


United States District Court,
M.D. Alabama,
Southern Division.
Max N. HUGHES and Hughes Tire Company, Plaintiffs,
v.
The COOPER TIRE COMPANY, a division of the Cooper Tire & Rubber Company, et
al., Defendants.
No. Civ.A. 99-A-1351-S.
Dec. 10, 1999.

Company denied credit sued supplier for, inter alia, defamation. On defendant's motion to dismiss, the District Court, Albritton, Chief Judge, held that Alabama recognizes defamation against business as separate claim from tort of interference with business.
Motion denied.

Cooper is right that truth is an absolute defense to a claim of defamation. See Liberty Loan Corp. of Gadsden v. Mizell, 410 So.2d 45, 49 (Ala.1982); Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941). However, in the present case, the Plaintiffs have not admitted that the published statements were true at the time they were made. The Complaint clearly states that the publication to the third parties by Cooper that the Plaintiffs were liable to Cooper for a $61,000 judgment was made on October 24, 1997, "at which time no judgment of any kind existed in favor of Cooper Tire Company against Max Hughes or Hughes Tire Company." Complaint ¶ 12. Accordingly, Cooper's Motion to Dismiss is due to be DENIED.

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 10:58 pm

Defendants argue that we should grant the motion for summary judgment on the remainder of the defamation claim because Purcell did not pay his credit card bill. Truth is a complete and absolute defense to a claim for defamation. Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1345-46 (Pa.Super.Ct.1987). None of the parties dispute that Purcell wrote a check for $8,808.93 or that Defendants did not receive the $8,808.93 from either Purcell or Ephrata. But, as Purcell argues, Defendants are responsible for the mishandling of the check and its subsequent rejection by Ephrata for lack of a proper endorsement. He also alleges that Defendants have improperly reported the disputed charge to consumer credit agencies. Defendants halfheartedly suggest in an incomplete footnote that they have recognized that the $8,808.93 is disputed since an unspecified date. Arguably, by the time Defendants were reporting the dispute, the damage to Purcell's credit record had already been done and he had been denied credit that otherwise might have been extended to him. More importantly, Purcell also alleges that the collection attempts initiated by Defendants caused gossip and speculation among his employees and in the small town of approximately 4,300 persons where his business is located. We will not grant Defendants' motion for summary judgment where their actions may have been the reason that the credit card bill remained unpaid. With respect to the claim for invasion of privacy, Defendants urge that no publication of a matter concerning Purcell's private life occurred, and further, that if any publication did occur, it would not be highly offensive to a reasonable person. See Wells v. Thomas, 569 F.Supp. 426, 436 (E.D.Pa.1983). First, regarding the issue of publication, Purcell has provided evidence that employees at his business received numerous calls from Defendants regarding collection of the dispute amount. In some cases that may be insufficient to constitute publication. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133, 138 (Pa.1974) (noting that under the specific facts of the case at hand, notification to two or four parties at employee's workplace did not amount to publication). In this case however, Purcell argues that his community of approximately 4,300 persons is small enough that any damaging rumors would spread quickly. Second, whether an alleged publication would be offensive to a reasonable person depends on underlying issues of fact and cannot be resolved at this time. We accordingly will deny the motion for summary judgment for the remainder of the invasion of privacy claim.

Purcell v. Universal Bank, N.A.
Not Reported in F.Supp.2d, 2003 WL 1962376
E.D.Pa.,2003.
Apr 28, 2003

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 10:59 pm

Defendant Credit Bureau of Atlanta's motion for summary judgment is predicated on the theory that the fact contained in the credit report was true; Mr. Austin was named as a defendant in a lawsuit. Credit Bureau argues that its failure to distinguish whether Mr. Austin was named as a defendant individually or in his official capacity does not constitute a violation of the Fair Credit Reporting Act. Relying on Judge O'Kelley's opinion in Peller v. Retail Credit Company (C.A. 17900, December 6, 1973), Atlanta Credit Bureau contends that the truth of the matter contained in the credit report constitutes an absolute defense to an action based on the Fair Credit Reporting Act. In Peller, the plaintiff took a polygraph examination in connection with an application for a job. Plaintiff was not hired and subsequently obtained a position with another company which shortly thereafter discharged him because a check with defendant Retail Credit Company showed that the results of plaintiff's polygraph examination administered in connection with his application for the first job indicated that plaintiff had used marijuana in the past. The Court found that information was true and therefore granted summary judgment in favor of Retail Credit Company stating that "in order to pursue a cause of action based on a willful or negligent violation of 15 U.S.C. s 1681e(b), the report sought to be attacked must be inaccurate."

Austin v. BankAmerica Service Corp.
419 F.Supp. 730
D.C.Ga. 1974.
Jul 31, 1974

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 11:01 pm

Plaintiff claims that defendant defamed him by collecting and disseminating *434 inaccurate and false information about his insurance history. (Complt.¶¶ 61-62.) The elements of a claim for defamation are: (1) a false statement; (2) published without privilege or authorization to a third party; (3) constituting fault as judged by, at least, a negligence standard: (4) causing special harm (unless the statement was defamatory per se). Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1, 4 (1999). Truth is a complete defense to a defamation claim. Id. at 5.

Harris v. Allstate Ins. Co.
83 F.Supp.2d 423
S.D.N.Y.,2000.
Feb 16, 2000

David A. Szwak

Postby David A. Szwak » Tue Jan 17, 2006 11:04 pm

At the instance of defendant, the court instructed the jury as follows:
"(5) The court instructs the jury that plaintiffs complain that defendant published of and concerning them the following libelous things: First. The opinion is expressed that a local bank has been secured. Second. Their present condition is not regarded as particularly flattering, and seems to suggest cash dealings. Which they claim were each of them false, malicious, and defamatory. The publication complained of consists in defendant giving out to others papers containing said charges. Now, if you find from the evidence that defendant only gave out such papers to such persons or firms or corporations as were interested in knowing the financial condition of plaintiffs at the time, by reason of having had, or being about to have, business transactions with plaintiffs, or who were subscribers of defendant, and had made request upon defendant for information concerning plaintiffs, and that for such reasons, or any of them, defendant made and furnished such papers in good faith, then such publications were privileged, and do not sustain the allegations of plaintiffs' petition, and your finding must be for defendant, unless plaintiffs have proven by the greater weight of all the evidence in this case that defendant was actuated in making such publications by malice toward plaintiffs, as said term 'malice' has been defined in other instructions.
"(6) Although one may publish of another defamatory and malicious matter, yet the truth of the matter published forms a complete defense to any action for damage for such publication; and in this case, even if the jury should believe from the evidence that defendant published of the plaintiffs any or all of the matters charged as libelous, yet if they further find from the evidence that the matters so published were true as published, then the defense has been made complete, and in that case it is immaterial whether the party composing, or the party publishing, was or was not actuated by malice *678 against plaintiffs, and you must find for the defendant. And if the jury find from the evidence that any one of the two allegations or charges are true, then, in arriving at the assessment of damages, they must not allow any damages on account of such charge so proven to be true."

Minter v. Bradstreet Co.
174 Mo. 444, 73 S.W. 668
Mo. 1903.
Feb 24, 1903


Return to “Defamation: State Law”

Who is online

Users browsing this forum: No registered users and 2 guests