Years ago, a potential client called to ask if she could be successfully sued for libel if she published a tell-all memoir, revealing the details of a marital affair with a gentleman she intended to identify. My first reaction, which gave her pause, was “Well, is it true?” The truth of the matter often gets lost in the analysis of defamation and product disparagement claims, as plaintiffs often focus on the harm caused by the publication of negative statements about them, while defendants tend to rely on arguments that they did not act with the degree of fault necessary to establish liability.

A recent decision by the New York State Appellate Division in Prince v. Fox Television Stations illustrates that sometimes the truth – or at least substantial truth – can matter in successfully defending against defamation and product disparagement claims. In this case, Matthew Prince sued Fox Television and a Fox reporter for airing an investigative piece about the caloric and nutritional content of D’Lites ice cream sold at two stores in the New York metropolitan area. According to the broadcaster, laboratory tests revealed that a small cup serving of D’Lites ice cream contained more than three times the number of calories than advertised. While the plaintiff contended that a small size cup was intended to contain only 39 grams, video footage in the report showed that a 39 gram serving would only fill less than half of a small size cup; in actuality, customers were typically being served as many as 160 grams in a small size cup.  The news report concluded by putting D’Lites into a “Hall of Shame.”

On a motion for summary judgment, the lower court concluded that Mr. Prince had adequately established that the Fox news report was “of and concerning” him even though the report did not mention Mr. Prince by name or refer to his own D’Lites stores in other locations that had not yet opened at the time the news report was aired. See Memorandum Decision. However, after examining the laboratory research Fox News had commissioned as the basis for the report and considering plaintiff’s attacks on that evidence, the court found that the report was “substantially true” in relation to the amount of ice cream actually served to the public in the small size cups. As the court concluded, “Truth provides a complete (affirmative) defense to defamation and disparagement claims.”  The lower court further held that the defendants were not “grossly negligent” in investigating and broadcasting the report – the standard of fault that applied to a defamation claim brought by a private plaintiff – nor had they acted with malice, the standard applicable to Mr. Prince’s product disparagement claims.

In a brief order, the appellate court affirmed the lower court’s grant of summary judgment to the defendants, agreeing that the plaintiff had not demonstrated a triable issue of fact about the nutritional and caloric content of the D’Lites ice cream. The appellate opinion also held that a statement in the news report that D’Lites ice cream was not “healthy” would be regarded by any reasonable viewer as a protected expression of opinion, based on disclosed information about the nutritional content of the ice cream.

The Prince decision is a useful reminder that a successful defense to defamation or product disparagement claims can be based on the truth – or least substantial truth — of the challenged statements. The truth of the matter can of course be raised in addition to the argument that the defendant did not act with the requisite degree of fault applicable to the plaintiff and the subject matter of the challenged statements, whether it be actual malice, gross irresponsibility (as in Prince) or negligence.

Sometimes proving the truth of allegedly defamatory statements is not as simple as having a laboratory determine the caloric value of ice cream. One libel case I worked on involved a television docudrama that depicted an actual New Jersey garbage hauling business as being involved with organized crime in the dumping of toxic waste in ordinary landfills. The company sued the television network as well as the individual who had acted as the source of the story — a former employee who testified against the company and then went into the witness protection program.  The individual source lobbied to defend the case by proving that the mob had in fact infiltrated the New Jersey waste hauling business, causing environmental harm. Instead, the case was successfully resolved by defending on the less expensive (and perhaps less dangerous) ground that the defendants had not acted with actual malice in broadcasting a program on an issue of public concern.

There may surely be other types of libel and product disparagement cases where the truth is too complicated or elusive to demonstrate. But if you are faced with the defense of a case involving something as verifiable as the number of calories in a small cup of ice cream, the truth of the matter can set you free.