D. Defenses
Truth of the statement63 and consent64 are both defenses to defamation. Additionally, self-publication of the allegedly defamatory statement may bar recovery.65
The statute of limitations applicable to actions for libel or slander is two years66 running from the time of the defamatory statement, not its discovery.67
The South Carolina Tort Claims Act68 waives the immunity of the State, its agencies, political subdivisions, and governmental entities from liability in tort. It contains, however, many limitations on liability and damages which may preclude or restrict a plaintiff's cause of action.69 The Act is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of his or her official duty and must be liberally construed in favor of limiting the liability of the governmental entity.70 A limitation specifically applicable to an action for defamation is that governmental entities71 are not liable for a loss resulting from "employee conduct ... which constitutes ... actual malice ...".72 Thus, when a defamation claim requires the plaintiff to show actual malice, the waiver of immunity does not apply.73
While common law charitable immunity was eliminated by the South Carolina Supreme Court in 1981,74 the decision does not have retroactive application.75 There is a statutory limitation on liability for charitable organizations.76 A "charitable organization" is any organization, institution, association, society, or corporation which is exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) or (d).77 A person "sustaining injury or dying"78 as a result of a tortious act of commission or omission by an employee79 of a charitable organization acting within the scope of his or her employment, may recover no more than the liability imposed under the Tort Claims Act80 for actual damages sustained. Unless it is proved that the employee acted recklessly, willfully, or in gross negligence, an action against the charitable organization is a complete bar to recovery against the employee.81 Where a defendant is both a governmental and charitable organization, the Tort Claims Act provides the exclusive remedy, and the action is governed by it rather than the charitable immunity statute.82
There are absolute and qualified privileges applicable to defamation. The South Carolina Supreme Court has said:
The publication of defamatory words may be under an absolute, or under a qualified or conditional privilege. Under the former there is no liability, even though the defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow, and practically limited to legislative and judicial proceedings and acts of state. One publishing defamatory words under a qualified or conditional privilege is only liable upon proof of express malice.83
The elements of a conditionally privileged communication are: (1) good faith; (2) an interest to be upheld; (3) a statement limited in scope to this purpose; (4) a proper occasion; (5) publication in a proper manner to proper parties.84 Such privilege can be lost where the defendant makes a statement with actual malice85 or exceeds the scope of the privilege by publication to persons not in need of it to further the interest protected by the privilege.86 "[T]he privilege does not protect against unnecessary defamation, and the person making the statement must be careful not to go beyond what his interests or duties require.87 A privilege also can be abused if the statement is made in reckless disregard of the victim's rights.88 Conditional privileges89 include: publication of judicial proceedings and public records;90 fair comment;91 pre-trial negotiations;92 business or professional interests;93 self-defense or defense of others; public duty; family duty;94 credit reporting.95 The Omnibus Adult Protection Act96 provides immunity to those who in good faith report suspected abuse of a vulnerable adult.97 There is also a qualified privilege to release mental health records in an involuntary commitment proceeding.98 The federal Health Care Quality Improvement Act (HCQIA),99 provides immunity from damages to participants in professional peer review actions if the action meets prescribed standards and follows prescribed procedures.100 Opinion, satire, epithets, or rhetorical hyperbole cannot be the subject of liability for defamation.101
When a defamation claim is part of a church dispute, the First Amendment may supply a defense. The South Carolina Supreme Court says civil courts may not resolve disputes regarding religious law, principle, doctrine, discipline, custom, or administration, however, they may hear cases touching on religious organizations where the dispute may be resolved by neutral principles of law. The "neutral principles" doctrine applied where a pastor accused church trustees of mismanagement and deception during a congregational meeting. The trustees sued the church and pastor for, inter alia, defamation. The defendants argued the defamation claim could not be resolved using "neutral principles" of law. They contended the defamation claim was a matter of church governance because the allegedly defamatory statements were made during a congregational meeting discussing church business. The South Carolina Supreme Court disagreed and held the defamation cause of action fell "squarely within the realm of claims susceptible to the neutral principles of law approach because adjudication of the claim would not require any consideration of religious doctrine or governance."102
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Notes:
[63] Ross v. Columbia Newspapers, Inc., 266 S.C. 75, 221 S.E.2d 770 (1976) (sufficient defense made where evidence establishes statement substantially true); Parker v. Evening Post Publishing Co., 317 S.C. 236, 452 S.E.2d 640 (Ct. App. 1994), cert. denied, 516 U.S 1172, 116 S. Ct. 1263, 134 L. Ed. 2d 211 (1996); Haulbrooks v. Overton, 295 S.C. 380, 368 S.E.2d 676 (Ct. App. 1988); Beckham v. Sun News 289 S.C. 28, 344 S.E.2d 603. 604 (1986), cert. denied, 479 U.S. 1007, 107 S. Ct. 646, 93 L. Ed. 2d 702 (1986) (truth is affirmative defense); Cooper v. Laboratory Corp. of Am. Holdings, 150 F.3d 376 (4th Cir. 1998) (lab test presented truthful statement not actionable defamation where it was positive for alcohol but plaintiff alleged alcohol resulted from fermentation rather than alcohol consumption). See also King v. Charleston County Sch. Dist., 664 F. Supp. 2d 571 (D.S.C. 2009) (summary judgment granted for defendant school district where it provided professional reference to another district stating that plaintiff had been terminated for cause and plaintiff admitted statement was true); Castine v. Castine, 403 S.C. 259, 743 S.E.2d 93 (Ct. App. 2013) (while a sufficient defense is made out where evidence establishes that statement at issue was substantially true, substantial truth had to be proven as to each individual statement made, not as to content of letters sent by defendant as a whole); Erickson v. Jones St. Publrs., LLC, 368 S.C. 444, 458, 629 S.E.2d 653, 661, n. 2 (S.C. 2006) (defendant asserting truth as defense must prove that statement or purported fact is true, not that person quoted actually made statement); Parrish v. Allison, 376 S.C. 308, 656 S.E.2d 382 (Ct. App. 2007) (trial court erred in allowing defendant to assert truth of statements even though he did not affirmatively plead it as defense in his answer; even most liberal reading failed to persuade court that defendant affirmatively asserted defense that his statements made about plaintiff were true).
[64] Gaithers v. Harris Teeter Supermarket, Inc., 282 S.C. 220, 317 S.E.2d 748 (Ct. App. 1984) ("no one can enforce a right arising out of a transaction which he has voluntarily assented to.").
[65] Murray v. Holnam, Inc., 344 S.C. 129, 542 S.E.2d 743 (Ct. App. 2001).
[66] S.C. Code §...
