(2) To show that the publication was "privileged."
(3) To prove circumstances connected with the publication tending to show that it was not malicious, or was provoked and excused by the conduct of the complainant. This is called a defense "in mitigation of damages."
To prove that the defamatory publication complained of is true is an absolute and complete defense.
The old maxim of the English criminal law, "The greater the truth the greater the libel," frequently quoted erroneously in this connection, has no application to actions in the civil courts, and at the present time would scarcely be invoked even in any of the criminal courts of this country, except under the most extraordinary circumstances.
But it is not enough that the writer of defamatory articles himself knows that they are true, unless he is able to produce, when required, competent legal proof of their truth. What he himself has witnessed is, of course, competent evidence as far as it goes; when such proof can be strengthened by official records or other documentary proof, and by the evidence of other persons who can testify of their personal knowledge to the truth of the publications, a defense of the strongest character is presented.
But one distinction should be observed carefully, a misconception in regard to which has given rise to many libel suits that have been difficult to defend. When it is said that "the truth is a complete defense," the literal truth of the published statement is not meant; but the truth of the defamatory charge.
To illustrate: A prominent official, say a judge, during the progress of a political campaign, either in the course of an interview or of a public speech, makes the charge against a candidate for an important office that he (the candidate) obtained his naturalization papers either through perjury or subornation of perjury. A newspaper publishes the interview or the speech, giving the speaker's name and the exact language he used. If the candidate referred to should sue the newspaper for libel because of this publication, it would be no defense for the publishers to show that it was true that the speaker had said just exactly what the newspaper represented him to have said. To justify they would have to show that the defamatory charge was true, that the candidate had been guilty of perjury or subornation of perjury in obtaining his naturalization papers.
In other words, no publishers or writers can escape responsibility for defaming a man's character by showing that it was on the authority of some other individual.
The same principle applies to defamatory accusations republished from another newspaper, whether the name of the newspaper from which they are copied is given or not.