Defamation Defences

• Defences


  - Truth

  - Honest Opinion

  - Public Interest

  - Absolute Privilege

  - Qualified Privilege

  - Accord and Satisfaction

  - Offer of Amends
• Truth Defence


  Section 2 of the 2013 Act, replacing the common law defence of justification.

  The defence required that the published complained of can be proved in court to be 'substantially true'.

  The standards of proof needed for a truth defence to succeed is that used in civil cases generally - the material must be proven true 'on the balance of probabilities'.

  Should avoid implying habitual conduct such as the statement that someone 'is a thief' may be true, but if the basis for the statement is just one minor conviction.

  The truth defence involves proving not only the truth of each defamatory statement but also any reasonable interpretation of the words and any innuendoes lying behind them.

  Must have credible witnesses.
• Honest Opinion Defence


  Section 3 of the Defamation Act 2013, which created the honest opinion defence, abolished the common law defence of 'honest comment', formerly known as 'fair comment'.

  Be the honestly held opinion of the person making it.

  Be recognisable to the reader/viewer/listener as opinion rather than as a factual allegation.

  Be based on a provably true fact of privileged material - so media organisations relying on the honest opinion defence should be prepared to run another defence.

  Explicitly or simplicity indicate, at least in general terms, the fact or information on which it is based.

  The suggestion that someone has acted from improper motives has in the past been hard to defend as honest comment.
• Privilege


  The public interest sometimes demands that there should be complete freedom of speech without any risk of proceedings for defamation, even if the statements are defamatory and even if they turn out to be untrue. Privilege exists under common law and statute.

  Absolute Privilege - fair, accurate and contemporaneous Qualified Privilege - fair, accurate, no malice and in public interest
• Absolute Privilege


  The defence of absolute privilege, where it is applicable, is a complete answer and bar to an action for defamation. It does not matter if the words are true or false, or if they were spoken or written maliciously.

  A fair and accurate report of judicial proceedings held in public in a court anywhere in the world, published contemporaneously.

  A court report does not have the protection of absolute if its contents are ruled to be unfair or inaccurate in any important respect.

  Privilege may not protect defamatory words shouted out in court - for example, from the public gallery by someone who is not a part of the proceedings.
• Qualified Privilege


  This law, in effect, categories this information as being important to society.

  A qualified privilege defence will fail if the claimant can show malice by the publisher or author.

  The published report must be fair and accurate, and published without malice. The matter published must be a matter of public interest, the publication of which is for the public benefit.

  Schedule 1 to the 1996 Act sets out in Part 1 a list of statements having qualified privilege 'without explanation or contradiction' and a publisher relying on qualified privilege under Part II to protect a report must, to retain the protection, publish a 'reasonable letter or statement by the way of explanation or contradiction' if required to do so by anyone defamed in the report.

  This qualified privilege privilege in Part II of the schedule protects a report of speeches by councillors in a council meeting held in public, but will not protect a report of defamatory allegations a councillor makes after the meeting when asked to expand on statements made during it.

  Reports of public meetings, press conferences, scientific and academic are held anywhere in the world.

  Defence only covers things said or documents distributed in most public meetings, anything said outside is not covered by QP, but covers documents sent by official bodies eg police, government, councils

  Meetings and documents covered by Part 2 of Schedule 1 of the 1996 Act require

  - Publication of a letter or statement of contradiction or explanation

  - If requested

  Meetings/ documents in Part 1 do not require these statements

  - Includes meetings and docs from parliament and government agencies
• Innocent dissemination -Defamation Act Section 1 defence

  Can be used as a defence in internet cases

  Defence applies publisher establishes it was not the author editor or publisher of the defamatory material

  - Eg comments posted on un-moderated readers' comments section on website

  It did not know it had contributed to defamatory material

  That it took reasonable care regarding publication

  - Ie removed material when made known
• EU commerce directive Regulation 19


  Protects website operators

  Not liable for posts which breach any statute

  If not moderated

  And post removed when brought to the attention of operator
• Public Interest


  The defence created by section 4 of the defamation act 2013 was intended to protect publication of defamatory material in reports covering matters of public interest even if the publisher cannot prove the material to be true.

  The statutory 'public interest' defence, which has its origins in the Reynolds defence, has two principle elements - the publication must be a statement on a matter of public interest, and the defendant must believe that publication was reasonable.

  As regards such matters, the defence can protect publication of allegations which turn out be untrue, but the journalists involved must have complied with proper standards - for example, normally the person who is the subject if the allegations should be given the opportunity to respond them.

  A publisher intending to rely on the defence, if that proves necessary, as regards material planned for publication should get legal advice before it is published.

  The defence can protect 'neutral reportage' - accurate and impartial reports - of a dispute in which the claimant is involved.
• Other defences


  Leave and licence

  - Claimant has previously agree to that the defamatory material can be published.

  Accord and Satisfaction

  - Matter already disposed of by way of correction or apology or payment which the claimant has accepted as payment.

  The claimant has died, a defamation action is a personal action. A dead person cannot be libelled.