Defences to Defamation

If you have a defamation action put to you and you think you’ve got no way of dealing with it, don’t worry there are defences to defamation and within this article we will go through them and explain how and when they can be used.

Justification

The first and ultimate defence to defamation is that of justification. This means that what has been published is true. As with the other defences that we will describe in further details below the burden of proof will be on the defendant. Unlike other defences the issue of malice is irrelevant as truth is a complete defence.

For a defendant to succeed in this claim they have to prove that the meaning of the defamatory statement is true. The meaning that will have to be defended will be decided by the jury rather than the Claimant. Once the Jury has decided what the defamatory meaning is, it is then up to the defendant to justify that meaning.

It should be noted that as long as the defendant can prove that the vast majority of the charges put to him are true then his defence will not be defeated if there are a few untrue words in there which do not materially injure the claimant’s reputation.

Since the case of Burstein v Times Newspapers Limited^[1] in defences of justification they are able to bring up past actions by the Claimant to defend their statements. (The acts performed by the Claimant must be similar to those in the allegedly defamatory statement.)

Honest Comment

The next defence to defamation is that of honest comment. This defence will hold if the defendant honestly believed the truth of the opinions that he expressed. However if court deems there to be malice involved in the publication of the statement then the defence will be defeated.

(N.b. The defence of honest comment used to be known as fair comment until the case of Joseph v Spiller^[2])

For this defence to be successful the defendant needs to be able to show the comment:

Is on a matter of public interest;
Is recognisable as comment rather than an allegation of fact;
Is based on facts which are true (or if not true they are defended by privilege)
Is on a matter which has been put before the public or is a matter which the public has a legitimate concern

Finally the defendant must be able to show either explicitly or implicitly; at least in general terms; the facts on which the publication is based.

This defence will be defeated if the Claimant can show that the comment was infused with malice. In other words it is not necessarily his genuine opinion. However this can be very difficult to prove as the Claimant can not just show that the comment was prejudiced, exaggerated or unfair to prove that publication was malicious.

If you feel you have been accused of libel or slander and you feel you qualify for one of the defences to defamation please do not hesitate and contact us on [phonenumber] where one of our team will be able to discuss your situation with you and give you an idea if your case is one we can assist with.

Privilege

The privilege defence can actually be seen as two defences to defamation that of absolute privilege and that of qualified privilege. The basis of privilege is that the law accepts there are occasions when it is in the public interest to allow a greater freedom of speech. Absolute privilege is a complete bar to libel action whilst qualified privilege protects the statement as long as there is no malice involved in the statement (this is similar to the defence of honest comment). Malice can also be viewed as:

-recklessness as to the untruth of the statement

-a dominant improper motive in making a statement to be true

-misuse on the occasion for which privilege exists.

Absolute and Qualified privilege will be described in more detail now:

Absolute Privilege

This defence gives the defendant a complete protection to statements made in some very particular circumstances. They are:

Statements made in the course of parliamentary proceedings
Statements made in the course of judicial and quasi-judicial proceedings
statements made in the course of proceedings before the Benchers of an Inn of Court, the Solicitors’ disciplinary tribunal, Coroners’ Courts, the General Medical Council and Military Courts
Statements of other public officials protected by statute
Fair and accurate reports of Parliamentary and judicial proceedings published contemporaneously.
Other occasions where absolute privilege is extended for public policy reasons.

This defence of absolute privilege can not be defeated by proof of malice. With regard to what is considered contemporaneous if it is included within a newspaper or magazine then as long as it is published as soon as possible after the statements are made. (I.e. in the next issue following the proceedings)

Qualified Privilege

The Court have stated that this exists “for the common convenience and welfare of society because the law accepts that there are occasions when persons should be at liberty to express themselves freely even when in doing so a third party is defamed.”

There are some broad classifications of qualified privilege which include the following:

-Statements made in pursuance of a legal, moral or social duty, with a corresponding interest in receipt of such statement. This can be quite difficult for the courts to pin down and a lot of it will come down to the context of the particular case. One thing that is quite clear is that the interest mentioned above must be a legitimate interest and not a matter of mere gossip or curiosity.

-Statements covered by s.15 Defamation Act 1996

-Fair and accurate reports of parliamentary and judicial proceedings, whether or not published contemporaneously.

What Next?

If you have a defamation claim and you feel the other side don’t qualify for any defences to defamation or you are trying to defend a claim and you feel you do qualify, please contact us on [phonenumber] where one of our team will be able to run through the salient points and advise you on whether we will be able to assist or not.