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Guard Your Tongue

False statements can put churches in hot water.

Church office staff members often learn personal, and sometimes embarrassing, facts about other individuals. When it comes to passing on information, an administrator may feel confused or experience tension about what to say and to whom. Defamation can occur in situations in which the alleged offender is acting in what he or she believes is the best interests of the church. In fact, that often is the case.

A defamatory statement is an oral or written statement about another person; that is false; that is published (that is, communicated to a sufficient number of other persons to affect the other person's reputation); and that injures the other person's reputation. It's also important to remember that defamation involves injury to another's reputation rather than feelings. Not every derogatory statement is defamatory. Examples of a defamatory statement include statements concerning suspected embezzlement by a church employee, allegations of sexual misconduct by a staff member or volunteer, or explanations of why a church employee was dismissed.

Potential lawsuits

The potential for a lawsuit can arise from many common situations. To illustrate, in one case a youth pastor made statements to members of the congregation about an alleged affair between an associate pastor and a church employee and was sued for defamation. St. Luke Evangelical Lutheran Church v. Smith, 568 A.2d 35 (Md. 1990).

This example, along with many other cases, suggests that church staff members should refrain from making public remarks that might diminish the reputation, respect, goodwill, or esteem of other persons.

Defenses to Defamation

Church staff members who do communicate disparaging remarks about another person may be able to assert one of the following defenses to a charge of defamation.

1. Truth. If an allegedly defamatory remark is true, it is simply not regarded as defamatory by most courts. This defense is based on the principle that the dissemination of truth should not be restricted by the fear of defamation lawsuits.

However, note that in recent years the courts have devised a new tort (invasion of privacy) to punish statements which, though true, disclose private facts about another person in a way that would be highly offensive to a reasonable person.

2. Matters of common interest. Several courts have ruled that church members are protected by a qualified privilege when sharing with other church members about matters of mutual concern or common interest. This means that such communications cannot be defamatory unless they are made with malice. Malice in this context means that the person who made the allegedly defamatory remark knew that it was false, or made it with a reckless disregard as to its truth or falsity.

Before you say something

Before you make a statement that could be defamatory, take the following precautions:

1. Such statements may be protected by a qualified privilege if they are made to members only. This means that church leaders should ensure that only members are present when the statements are made. This can be accomplished in a number of ways. For example, a special meeting of members is called and only persons whose names are on the church's current list of active voting members are admitted. As an additional precaution, members present at such a meeting should be asked to adopt a resolution of confidentiality, agreeing not to discuss the information with any non-member under any circumstances. Persons dissenting from this vote should be excused from the meeting. Alternatively, the statements are set forth in a letter that is sent to active voting members (with the notation "privileged and confidential" on both the letter and envelope).

2. Church office staff should recognize the risks associated with the disclosure of confidential information. If such disclosures would seriously offend the average person, then they expose the church staff to liability based on invasion of privacy, even if the information that is disclosed is true. Church staff members also should realize that publicly ascribing positions to persons that they do not hold is another form of invasion of privacy that has been recognized by some courts.

3. Consult with an attorney before making any potentially defamatory statement to the congregation (in a meeting or through correspondence).

This article first appeared in Church Office Today. For subscription information visit ChurchOfficeToday.com.

Richard R. Hammar is an attorney, CPA and author specializing in legal and tax issues for churches and clergy.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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