Defamation Defences

What are the Defences available in a Libel claim?

Truth

Truth is a complete defence to libel or slander: no claimant can succeed if the essence of the alleged defamatory statement is proved substantially true on the balance of probabilities. This principle reflects the policy that reputation based on falsehood is not worthy of protection. The sole exception is old, spent convictions under the Rehabilitation of Offenders Act 1974, which are treated as expunged and cannot be pleaded as truth. The Defamation Act 2013 replaced the common-law defence of justification with the statutory Defence of Truth, preserving the substance of the old rule.

Statutory Defence of Truth (Defamation Act 2013 s.2)

• Section 2(1): A defence if the imputation conveyed is substantially true.
• Section 2(3): Where multiple imputations arise, the defence still succeeds if unproved matters do not seriously harm reputation beyond the true imputations.
• Section 2(4): Abolished the old common-law justification.

Parliament intended no substantive change: courts will continue to apply pre-2014 case law on “substantially true” and partial justification.

Burden and Standard of Proof

• Burden on defendant: Defamatory statements are presumed false; the publisher must prove truth.
• Standard: Ordinary civil standard (balance of probabilities). Serious allegations require more cogent evidence to tip the balance, but the numerical threshold remains above 50% likelihood.
• Tactical caution: Pleading truth without firm evidence may be struck out as an abuse of process and, if unsuccessfully pursued, may aggravate damages. Defendants should only plead truth when robust evidence or clear leads exist.

Determining the Meaning of the Words

• Single meaning rule: The court determines the one definitive meaning an “ordinary reasonable reader” would take.
• Early meaning hearings: Standard practice in the High Court post-2013; crucial to identify precisely what the defendant must justify.
• Lucas-Box tactics disallowed: Defendants must justify the court-determined meaning.
• Practical advice: Defendants should argue for the narrowest viable interpretation consistent with what they can prove.

Chase Levels (Hierarchy of Imputation)

From Chase v News Group Newspapers [2002]:

1. Level 1 – Guilt: Outright assertion of wrongdoing; defence must prove the claimant actually committed the act.
2. Level 2 – Reasonable grounds to suspect: Implies that, at publication, there were objective facts warranting suspicion; defence must prove those underlying facts.
3. Level 3 – Grounds for investigation: Suggests a basis for inquiry; defence should prove there was an investigation prompted by legitimate factual circumstances.

Courts require the proof to match the level identified at the meaning hearing; mistakes can be fatal.

Proving “Substantial Truth”

• Core principle: Only the “sting” or gist of the allegation must be true; minor errors immaterial to reputation do not defeat the defence.
• Material discrepancy: Any unproved element that enhances the defamatory sting will defeat the defence.
• “Bane and antidote”: Context may qualify a phrase, altering its sting; the court reads the publication as a whole to assess the true imputation.
• After-acquired evidence: Evidence discovered post-publication may be used to prove truth; focus is on actual truth, not publisher’s knowledge at the time.
• Time-bound statements: When a statement is time-specific, truth must be assessed at that moment.

Multiple Imputations and Partial Truth

• Section 2(3) mechanism: Defence succeeds if unproved imputations do not seriously harm reputation beyond proven ones.
• Seriousness test: A major unproved allegation (e.g. murder) defeats the defence, even if other allegations are true; a trivial unproved claim may be disregarded.
• Common sting (Polly Peck defence): Defendants may justify an overarching accusation rather than each particular; must plead at the meaning stage.
• Damages mitigation: Proof of other truths mitigates damages to reflect actual injury to reputation.

The Repetition Rule

• Repeating allegations: Republishing a defamatory statement is itself publication; one must prove the underlying fact.
• Implication vs literal truth: Neutral reports may imply wrongdoing (Chase Level 2) and require proof of the implied suspicion’s truth.
• Privileges and public interest defence: Fair and accurate reports of parliamentary or court proceedings may be privileged; s.4 protects responsible reportage.

Fact vs Opinion

• Truth defence applies only to facts: Statements of opinion attract the honest opinion defence (s.3).
• Determination: Courts consider phrasing, verifiability, disclosed basis of opinion, and context.
• Honest opinion requirements:
  1. Recognisable as opinion.
  2. Based on true facts stated or known.
  3. Honestly held by the author.
• Plead in the alternative: “If fact, then true; if opinion, then honest opinion.”

Limits of the Truth Defence

• Misuse of private information: Truth is no defence to privacy claims; private facts may not be published absent public-interest justification.
• Data protection: Publishing true personal data can breach GDPR regardless of truth.
• Harassment: Repeating true but distressing personal information may constitute harassment.
• Confidentiality: Truth is no defence to breach of confidence or NDAs.
• Spent convictions: Truth about a spent conviction cannot be pleaded in defamation.

Honest Opinion

The defence of honest opinion is a significant aspect of defamation law, as outlined in Section 3 of the Defamation Act 2013. This defence aims to balance the protection of reputation with the preservation of freedom of expression.

Section 3 of the Defamation Act 2013 sets out the conditions for the honest opinion defence. To successfully use this defence, the statement must be an opinion, the basis of the opinion must be indicated, and an honest person could have held the opinion based on any fact existing at the time of publication. However, the defence is defeated if the claimant can show that the defendant did not genuinely hold the opinion.

The courts have provided guidance on the application of the honest opinion defence. In Corbyn v Millett [2021], the Court of Appeal warned against treating comments as statements of fact, which would weaken the defence. The court recognised that the defence should protect genuinely held opinions. The scope of this defence, as articulated in Telnikoff v Matusevitch [1992] 2 AC 343, 354, and subsequently in Tse Wai Chun v Cheng [2001] EMLR 31 [20] and Joseph v Spiller [2011] 1 AC 852 [3], is substantial. An opinion need not be fair or rational; it must merely be honestly held, the test is whether any person, however prejudiced, could honestly hold the defendant’s view. The emphasis is on honesty, not rationality. This was further affirmed in Carruthers v Associated Newspapers Ltd [2019] EWHC 33 (QB) [30], where the defendant is not required to persuade the court to agree with their opinion, nor demonstrate that it falls within a ‘reasonable’ margin.

Despite its broad scope, the honest opinion defence is not without limitations. In Riley v Murray [2023], the court established that the facts relied upon must be true. The defendant does not need to prove the truth of every fact relied upon, but a single fact that supports the opinion is sufficient. However, the court also noted the need for a connection between the subject matter of the statement and the supporting facts. Read our detailed guide as to Honest Opinion 

Public interest.

Defamation Act 2013: Publication on matter of public interest
S4

• (1)It is a defence to an action for defamation for the defendant to show that—
• (a)the statement complained of was, or formed part of, a statement on a matter of public interest; and
• (b)the defendant reasonably believed that publishing the statement complained of was in the public interest.
• (2)Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case.

The usual defendant would be journalist for a newspaper or television who had published a piece of investigative journalism. However, the internet has in recent years seen an explosion of blogs and amateur journalists.

The origins of this defence were found in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127, [1999] 10 WLUK 903. This established a defence as to publication of statements made in the public interest, as long as the defendant could show that it had met the standards of responsible journalism, assessed by reference to a non-exhaustive list of factors.

When determining a defendants reasonable belief in S4 1 (b) that publication was in the public interest, the court had to take account of all the circumstances, which might include the factors in the Reynolds non-exhaustive list., Economou v de Freitas [2016] EWHC 1853 (QB), [2017] E.M.L.R. 4, [2016] 7 WLUK 690. However the list was not a mandatory checklist.

In Serafin v Malkiewicz [2020] UKSC 23 (3 June 2020) the Supreme Court firmly clarified matters as to Reynolds and the list of factors.

• It stated that the ingredients required to make out the s.4 defence ensured that its operation would not violate art.8 or art.10.
• The question was not whether the article was in the public interest, but whether it was on a matter of public interest; the reference to the Reynolds “checklist” was inappropriate; and references to acting “responsibly” were best avoided as it was not within s4
• The Court of Appeal had been wrong; publishers were not required to give claimants the opportunity to comment before publication. A failure would be relevant to s.4(1)(b) but it was not a requirement,
  

  “failure to invite comment from the claimant prior to publication will no doubt always at least be the subject of consideration under subsection (1)(b) and may contribute to, perhaps even form the basis of, a conclusion that the defendant has not established that element of the defence. But it is, with respect, too strong to describe the prior invitation to comment as a “requirement”

Reportage

Section 4(3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it.

This is effectively what was referred to in the past as a reportage defence, that is, a neutral account of a dispute to which the claimant is a party. In those circumstances a defendant is relieved of their normal obligation to take reasonable steps to verify the truth of the allegations being reported, A journalist who is reporting an impartial account of a dispute should not have to investigate the merits of the dispute before reporting neutrally on it. However, the journalist must remain neutral and not take one side over another in their reporting.

Privilege

If untrue defamatory allegations are published on an occasion of privilege, they will be protected from a claim in defamation. It is recognised that in certain situations it is to the benefit of society generally for people to be able to communicate without the fear of being sued for defamation.

Absolute Privilege

Absolute privilege will provide a complete defence regardless even when the allegation is untrue or malicious.
The following are examples of absolute privilege which will be an absolute defence to a defamation claim.

• Parliamentary proceedings.
• Reports of judicial proceedings. That is fair, accurate and contemporaneous reports of proceedings in public before an applicable court are absolutely privileged.
• Judicial proceedings.
• Statements made by one officer of state to another during the course of his official duty.
• Statements contained in reports of various statutory officers and bodies.
• Statements made in the course of other proceedings having judicial characteristics.

Read our detailed guide as to Absolute Privilege

Qualified Privilege

Statutory Qualified Privilege

The Defamation Act details circumstances when a report is privileged except when malice can be proved.

• A fair and accurate report of proceedings in public of a legislature or court anywhere in the world.
• A public inquiry or proceedings in public of government or legislature anywhere in the world.
• A fair and accurate copy of or extract from any register or other document required by law to be open to public inspection.
• A notice or advertisement published by or on the authority of a court, or of a judge or officer of a court, anywhere in the world.
• Fair and accurate copy of or extract from matter published by or on the authority of a government or legislature anywhere in the world.
• Fair and accurate copy of or extract from matter published anywhere in the world by an international organisation or an international conference.

However, if requested to publish a letter or statement by way of an explanation or contradiction and that person refuses or neglects to do so then there is no defence.

Common law Qualified Privilege

The defence of common law qualified privilege requires a reciprocal relationship of duty and interest between publisher and publishee.

An example would be an employer writing a reference about an employee, answering police inquiries, communications between teachers and parents, local councillors, officers of companies, employers and employees, or banks providing information to credit agencies, are all relationships that are protected by qualified privilege.

This defence also covers statements made to protect a legitimate interest, so if you were to defend yourself from a false accusation, providing the statements were made in good faith by you and relevant to the issues.

In order to defeat a defence of qualified privilege, a claimant must show that defendant acted maliciously in publishing the words complained of. Malice means that the defendant makes the statement for some dominant improper motive. If you are able to show that defendant did not believe the words to be true, or was reckless as to their truth, then that is strong evidence that the defendant has acted with a dominant improper motive. Read our Guide to Malice.

Peer-reviewed statements in scientific or academic journals

The Defamation Act 2013 s6.

(1)The publication of a statement in a scientific or academic journal (whether published in electronic form or otherwise) is privileged if the following conditions are met.

(2)The first condition is that the statement relates to a scientific or academic matter.

(3)The second condition is that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by—

(a)the editor of the journal, and (b) one or more persons with expertise in the scientific or academic matter concerned.

This section was aimed at preventing the stifling of legitimate scientific debate. The inspiration for this was the libel claim in British Chiropractic Association v Singh [2010] EWCA Civ 35, in which a science writer was sued for accusing the claimant of promoting bogus treatments. Read our detailed guide on Qualified Privilege. 

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