Defences to defamation

Chapter 15 is, thus, the necessary accompaniment to Chapter 14 on Defamation. It required that you are able to distinguish between the different levels of protection afforded by the ‘absolute’ and ‘qualified’ privileges; outline the defences available for unintentional or innocent publication; and it explains the reforms introduced by the Defamation Act 2013.

The three main defences to defamation are truth (formerly justification), honest opinion (formerly fair comment), and privilege (absolute and qualified). Some defences are ‘absolute’, which means that regardless of how careless the defendant has been in publishing the statement or whether he has been motivated by malice, the defence provides complete protection. A key example is statements made in Parliament, which have been absolutely privileged since the Bill of Rights in 1668. Other defences are ‘qualified’, which apply to a wider range of situations, but these defences fail where the claimant can show that the statement was made ‘maliciously’. Malice in this context can be defined as ill will, spite, and improper motive or a lack of honest belief in the truth of the statement. An example would be a statement made in pursuit of a mutual legal, moral or social duty, as in Watt v Longsdon.

The Defamation Act 2013 codified, and rationalized, and modernized the common law of defamation. Most importantly, truth is a complete defence to an action in defamation. It is significant that in the English law, there is an assumption that defamatory statements are false, and the burden is on the defendant to prove truth. In other common law jurisdictions such as the United States there is usually a presumption of truth which must be rebutted by the claimant.

A new defence of honest opinion, which replaced the common law defence of fair comment, was introduced by Section 3 of the Defamation Act 2013. Honest opinion, like justification, is a complete defence to an action in defamation. However, unlike justification, the defendant is not required to show the truth of the statement. A purely factual statement is either true or false but the same cannot be said for expressions of opinion, such as comment on the merit of an artistic performance.

Reynolds v Times Newspapers in 2001 established a qualified defence for publications (usually news reports) commenting on a matter of public interest. The Defamation Act 2013, Section 4, replicates that defence, with some differences. The Act also introduces a new defence for web operators in Section5, and this, combined with the single publication rule in Section 8, which affects limitations, can be said to give new a level of protection to Article10: freedom of expression.

Damages are the most common remedy for defamation. Problems in the past with unduly generous awards calculated by juries are expected to diminish, now that judges will be determining these.