Welcome to 'The Libel Bible' – a six-part article series on all things defamation. In this comprehensive series, we delve into the complexities of defamation and the law that surrounds it in the UK. With discussion on fundamental principles and commentary on recent cases, this series provides an informative insight into the intricate world of freedom of expression and reputation protection in today's progressive society.
This article in our defamation series focuses on the defences available to a party accused of defamation. There are lots of options, and it is possible to rely on more than one in a single case. The key defences we will cover in this article are truth, honest opinion, publication on a matter of public interest, privilege (of which there are two varieties), peer-reviewed statements in scientific and academic journals, innocent dissemination, and an offer of amends.
Meaning
Often the meaning of a statement may not be entirely clear. To consider the claim and the defences to it, (at an early stage of the proceedings) the court will usually decide exactly what the statement complained of actually means. What the maker of the statement intended it to mean, or thought it meant, is not relevant; what matters is how the statement is to be understood by other people. The court can only decide on a single meaning, even though the statement may mean different things to different people.
Truth
When a claim is brought for defamation, the starting point is that the court assumes that the statement complained of is false. This makes it easier for the claim to be brought, and it means that it is a defence to the claim to show that the statement is true. The rationale for the defence is that a claimant should not be entitled to recover damages for injury to a reputation they did not deserve to have in the first place.
To succeed, the defendant has to establish the "essential" or "substantial" truth of the sting of the alleged defamation, which will have become clear when the court decides on the meaning of the statement. Proof of every detail is not required, but the facts that are essential to disproving the sting of the publication must be established.
The level of proof required will be adjusted to take account of the seriousness of the meaning. A very serious defamation requires a higher degree of proof to establish truth. If a defendant is not able to prove that all of the statement is true, the defence of truth can still succeed if the parts which are not shown to be substantially true do not seriously harm the claimant's reputation.
It is also important to note that the intention or knowledge of the defendant at the time of publication is irrelevant. If a defendant can show that the statements made are true as a matter of objective fact, the claim will fail irrespective of how malicious the defendant's intentions were or how recklessly the defamatory statements were made. In addition, the defendant is entitled to rely on information that they were not aware of at the time of publication, and even on circumstances and events that occurred after publication of the defamatory statement.
Honest opinion
To rely on this defence, the defendant must show that:
(a)the statement complained of was a statement of opinion;
(b)the statement indicated the basis of the opinion; and
(c)the opinion is based on true facts which are either contained in the publication or are sufficiently referred to.
Assessing whether a statement will be understood as a statement of fact or as a statement of opinion is not always straightforward and may depend upon the meaning attributed to the statement.
It is important to note that even if the conditions above are met, the defence will fail if the claimant can show that the defendant did not actually hold the opinion (in other words it is not "honest").
Publication on a matter of public interest
There are two parts to the statutory defence of public interest. First, the defendant must show that the statement complained of was, or formed part of, a statement on a matter of public interest. There is no definition of "public interest" as it is thought that the term needs to be flexible to accommodate different circumstances and subject matter. However, the courts have offered some guidance by deeming the concept of "newsworthy" as too wide, but also "what the public need to know" as too restrictive. In general terms, matters that are purely personal or private are unlikely to be considered matters of public interest, whereas subject matter which affects public life may fall within the scope of the public interest defence.
Secondly, the defendant must show that they reasonably believed when they published the statement that to do so was in the public interest. The assessment of reasonable belief will involve:
(a)An assessment of the publisher's state of mind; and
(b)An objective assessment of the reasonableness of the publisher's belief.
When it comes to the objective assessment questions such as whether the defendant satisfied themselves that what they were saying was true will come into play (because it would not be reasonable to think it was in the public interest to publish something untrue).
Absolute privilege
Absolute privilege means that there can be no liability for a statement in defamation, irrespective of whether the statement is true or false or made honestly or dishonestly. Absolute privilege is therefore limited to circumstances where freedom of speech is paramount.
For example, there is absolute privilege for statements made in court and tribunal proceedings, in parliamentary proceedings, in reports of court and tribunal proceedings, in reports of parliamentary proceedings, for statements made by ministers to each other in the course of their official duty, and for statements contained in reports of various statutory officers and bodies.
Qualified privilege
Qualified privilege means that there is no liability in defamation for a statement that was honestly made in circumstances where the person making the statement was acting under a duty (for instance to do with their job) and the statement was only published to people who needed to know what the statement said. But if the statement was made for an improper purpose (i.e. "with malice") then the protection of qualified privilege is lost. So, this defence operates to defend honest mistakes made by people in circumstances where there is some sort of public duty.
Qualified privilege may arise because of a statute or under the general principles of the common law.
For example, statutory qualified privilege covers publication of a fair and accurate report of proceedings in public courts, of proceedings at a general meeting of a UK public company, and of findings or decisions of certain public bodies and ONS etc.
Qualified privilege arises under common law principles where there is a reciprocal relationship of duty and interest between the person making the statement and the person receiving the statement, or where the person making the statement is acting reasonably in their own interests. In essence, for common law qualified privilege to apply:
(a)The person who makes the statement has a legal, moral or social interest or duty to make the statement;
(b)The person who receives the statement has an interest or duty to receive it; and
(c)There is no evidence of malice.
For example, this would cover situations such as employment references, members of the public filing complaints to the relevant authority, reports of social workers or the police made in the course of their duties, and reports made by employees to their HR departments. The possible circumstances in which common law qualified privilege can arise are quite wide and the law is flexible in this regard.
Peer-reviewed statements in scientific or academic journals
This defence is intended to ensure that legitimate scientific debate cannot be suppressed by claims for defamation. To rely on this defence, the defendant must show that:
(a)The statement complained of relates to a scientific or academic matter; and
(b)Before the statement was published, an independent review of the statement's scientific or academic merit was carried out by the editor of the journal and one or more persons with expertise in the scientific or academic matter concerned (the peer review).
It is important to emphasise that the scope of this defence is restricted to scientific or academic journals, and it does not offer general protection for academic speech.
Offer of amends
An offer of amends is available to a defendant who has made an innocent mistake and does not wish to defend the claim on a substantive basis. In essence, this procedure is intended to provide a quick and cost-effective resolution of cases in which a defendant is prepared to admit liability. To rely on this defence, the defendant must follow a specific procedure, namely:
(a)An offer of amends must be made in writing;
(b)The offer must set out the defamatory meaning in relation to which the offer is made;
(c)The offer must refer to the procedure and offer to make and publish a suitable correction and sufficient apology; and
(d)The defendant must agree to pay damages (if any) and costs.
Where the offer is accepted, the claimant may not bring or continue defamation proceedings against the offeror. If the offer is not accepted, the offer of amends provides a complete defence to a claim for defamation in respect of the statement to which it relates, unless the claimant can show that the defendant knew or had reason to believe that the statement complained of was false and defamatory of the claimant (i.e. the statement was made with "malice"). In assessing compensation, the court will apply a discount of up to 50% to reflect the offer of amends. The level of discount will depend on the speed of the offer and the promptness of the apology.
Defences available to intermediaries
There are a number of defences available for internet intermediaries, that is for individuals or companies who do not post the defamatory content but who are involved in its transmission or presentation to third parties. The main defence is that of innocent dissemination, which applies where the statement was published by a person who:
(a)was not the author, editor, or publisher of the statement;
(b)took reasonable care in relation to its publication; and
(c)did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement.
As is evident, there are many possible defences to a defamation claim, and they are all very different. It is therefore important to obtain expert legal advice at an early stage, rather than risking relying on a defence that has no hope of succeeding in the long term.
Read the original article on GowlingWLG.com
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
