Defamation actions to safeguard business and personal reputations: the importance of smart offense and thoughtful defense

In today’s digital environment, misinformation spreads like wildfire and can inflict severe reputational damage. For businesses, false statements about products, employment conditions, financial reporting, or ethical practices can drive away customers, unnerve investors, and invite unwanted scrutiny from enforcers and regulators. For individuals, reputational attacks can be career-ending and personally destructive.

Knowing when and how to bring an effective defamation charge can save reputations and begin to undue past damage. Understanding how to successfully use the available defenses against defamation actions, in turn, can protect companies and individuals from misguided legal actions. This summary explains, in practical terms, both the offensive and defensive use of defamation law. 

The Rising Stakes of Defamation

The recent surge in defamation cases demonstrates how damaging defamatory statements, particularly when widely disseminated, can be. High-profile cases involving businesses, as well as political and media figure are becoming an almost-daily occurrence, as are increasingly aggressive damage claims.

Well-crafted defamation actions have the potential of beginning to repair past harms, minimizing future reputational damage, and protecting brands. Cases such as the pending dispute between Exxon Mobil and the California AG over the AG’s claim that Exxon’s plastic recycling technology is ineffective and Newsmax’s August 2025 $67 million settlement payment to Dominion Voting Systems following allegations that the Dominion machines "stole" votes are timely illustrations of these points.  

That said, courts have also rejected many of these attempts to bring defamation claims. 

What this mixed legal terrain underscores is the importance of fully understanding the law, including defenses, and ensuring that a particular state or federal defamation action is firmly grounded on the strongest evidence available.  

Elements of a Defamation Claim

Although the law varies by jurisdiction, most defamation claims share five key elements:

1. False and defamatory statement
2. Publication to a third party
3. Lack of privilege
4. Fault (knowing falsity, reckless disregard, or negligence)
5. Damages (unless defamation per se applies)

Strategic Considerations for Plaintiffs

• Pre-litigation preparation: Lock in what was said, who said it, to whom, and the immediate impact. Where possible, obtain affidavits or recorded statements before filing.
• Defamation per se vs. per quod: Plead both if facts allow. Per se claims (including claims of criminal conduct) avoid the need to prove damages. Per quod claims, on the other hand, allow presentation of specific harm (e.g., lost business, increased marketing costs).
• Anticipate counterclaims: Defamation cases often invite "you defamed me first" responses—plaintiffs, therefore, should ensure that they have their own reputational house in order.
• Understand who is behind defamatory activities. Competitors have at times used or aligned themselves with consumer advocacy groups, NGOs, or similar organizations as vehicles to launch reputational attacks crossing into potentially defamatory conduct.
• Anti-SLAPP statutes: Many jurisdictions allow early dismissal of suits involving matters of public concern and award attorney’s fees to prevailing defendants. Complaints should emphasize private, business-related harm.

Common Defenses

Defendants frequently invoke:

• Truth: Substantially true statements are not actionable;
• Opinion: Statements framed as conjecture or speculation may be shielded;
• Privilege: Absolute (e.g., judicial testimony) or qualified (e.g., workplace common interest) privileges may apply; and
• Public Figure Status: Whether the claimant is deemed a public figure is often dispositive on the fault element. Public figures—ranging from celebrities to prominent business executives—must prove "actual malice" (provable knowledge of falsity or reckless disregard for the truth), a significantly higher burden than private plaintiffs.  

Practical Guidance

• Early deposition of third-party recipients of defamatory statements can strengthen the case and promote quicker resolution.
• Well-drafted complaints should include motive, fault, and damages allegations to survive dismissal and increase settlement leverage.
• Remedies may include not only monetary compensation but also public retractions or apologies, which can sometimes be more valuable than dollar damages.

Key Takeaways

Defamation actions remain a sharp—if challenging—tool available to businesses and individuals focused on protecting their hard-earned good reputations. Success hinges on early preparation, anticipating defenses, and a careful pleading strategy. For companies and individuals facing reputational attacks, swift, strategic use of the defamation framework can provide both deterrence and meaningful relief.

• False statements, whether made online, through the media, or at industry gatherings, can cause lasting reputational and financial harm to companies and individuals.
• Sometimes such false statements are simply made recklessly, but other times, they can be part of an orchestrated (overt or surreptitious) attempt to inflict maximal damage.
• Those considering defamation actions must anticipate common defenses (truth, opinion, privilege, anti-SLAPP statutes) and proactively address them in pleadings and pre-litigation strategy.
• In the appropriate circumstances, and when carefully tailored to the evidence, defamation claims can provide meaningful relief.
• Conversely, companies and individuals who find themselves the targets of potential defamation actions must act quickly to protect themselves from the significant damage emanating from such actions.

For a deep dive into defamation law, see T. Markus Funk, et al., Wielding the Sharp Tool of a Defamation Action to Protect Business and Personal Reputations (Ohio State Law Journal)

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_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}

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