Defenses to a Business Defamation Claim


A business defamation claim exists when:

  1. a false and defamatory statement of fact was made concerning a plaintiff,
  2. that statement was communicated to someone other than the plaintiff, and
  3. that statement was made with a tendency to harm the plaintiff’s reputation and lower him in the estimation of the community.

In a business context, a corporation must show that the defaming party’s statements actually tended to effect the credit, property, or business of the corporate plaintiff. However, there are a number of defenses to a business defamation case, such as below.

Absolute Privilege

Any statements made in the course of judicial, quasi-judicial, legislative, administrative, or official proceedings are absolutely privileged from a defamation claim. The absolute privilege protects “the party or parties, counsel, and witnesses” and encompasses “anything that may possibly be pertinent.” Matthis v. Kennedy, 67 N.W.2d 413, 417 (Minn. 1954). Some examples of when absolute privilege applies are an attorney’s letter soliciting clients, statements made during or in connection with any state proceedings, and disclosure of potential defamatory subject matter when done by a high-level government official in the performance of his or her public duties. It is important to note, however, that absolute privilege does not attach merely because official proceedings had existed in connection with the defamatory statement.

In the case of Bol v. Cole, 561 N.W.2d 143 (Minn. 1997), the plaintiff brought a defamation action against the defendants for releasing a minor patient’s mother and her attorney’s reports of child abuse naming the plaintiff as the alleged abuser. The court held that while the defendants were protected by a qualified privilege, they were not protected by an absolute privilege merely because the statements were made during an official proceeding.

Qualified Privilege

A qualified privilege protects defamatory statements made on a proper occasion, with a proper motive, and based on reasonable or probable cause. Qualified privilege, in contrast to absolute privilege, protects only statements made without common law malice. Absolute privilege applies whether or not there was actual malice. Common law malice exists when a defamatory statement was made with improper motives, from ill will, or cautiously and wantonly for the purpose of injuring a plaintiff.

An example of qualified privilege exists to protect an employer from potential liability for statements made about an employee as long as those statements were made in good faith and for a legitimate purpose. Further, statements made regarding investigation of a current or former employee are also considered qualifiedly privileged. In contrast, qualified privilege does not apply to an employer who made repeated allegations against an employee without taking any steps to investigate the allegations, and instead relied entirely on accusations either made by other employees who could possibly be biased or on secondhand hearsay with no identification of sources. It is a question of law whether any privilege exists and the defendant bears the burden of establishing the existence of a privilege.

Fair Reporting Privilege

Reporting that is fair and accurate regarding events in a public proceeding is protected. However, any commentary on that event or proceeding is not protected under the Fair Reporting Privilege.


No matter how disparaging, true statements are not actionable. If the truth defense is asserted in a matter, it is generally the plaintiff’s burden to prove that the statements were false. The issue involves whether the “sting” or “gist” of the statement is false when taken in context. Minnesota Supreme Court has stated that “a statement is substantially accurate if its gist or sting is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced.” Jadwin v. Minneapolis Star & Tribune Co., 367 N.W.2d, 476, 492 (Minn. 1985).


Opinions are not automatically protected in defamation actions. There is a four-factor test in Minnesota to determine whether a statement is an actionable statement of fact or whether it is an opinion. Those elements are 1) the statement’s broad context, 2) use of hyperbolic language, and 3) reasonable expectations of the audience. In regards to hyperbolic language, hyperbole, puffery, and statements without precision are not actionable in a defamation claim. An example of an opinion would be stating that a judge is “an extremely bad judge” or a statement that “this court is determined to support trial court judges in whatever action they take in order to preserve the almost unlimited power of the judges to do what they wish.” Petition for Discp. Action against Nathan, 671 NW 2d 578, 584, (Minn. 2003). Lastly, distinguishing statements of fact from opinions is a question of law.


Any consent to publication of a statement is an absolute defense to a defamation action. Otto v. Charles T. Miller Hosp., 115 N.W.2d 36, 262 Minn. 408 (1962).

Statute of Limitations

Statute of limitations in Minnesota for a defamation claim is two years. Minn. Stat. § 541.07, subd. 1. The statute of limitations period begins to run when the defamatory statement is published. Wild v. Rarig, 302 Minn. 419, 234 N.W.2d 775, 794, (Minn. 1975).

Leave a Public Comment