What are the Defences available in a Libel claim?
It is a complete defence to a claim to show that the statement is true. Section 2(1) Defamation Act 2013 states that
“it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true”.
It is not necessary for the defendant to show that every allegation is true, if there were a number of allegations and some are shown to be true and others not, but the allegations that were not true did not materially damage the claimant’s reputation then the defence will still succeed. So the essential substance of the statement which is often known as the defamatory “sting” is true.
It is presumed that the defamatory statement is false, so the burden of proof is placed on the defendant to prove it is not. The defendant will have to prove this on the balance of probabilities i.e. that the fact in issue more probably occurred than not.
A defendant who repeats a rumour cannot rely upon truth just because there was a rumour, the defendant would have to show that the rumour was true.
The defendant must be very careful relying on truth because even if the publisher knew that the allegation was true, it may find it difficult to persuade the judge with enough evidence that that is the case. It is likely that the defendant will be penalised in damages if not successful.
It doesn’t matter what the intention of the defendant was at the time they published. They could be as malevolent as they wished to be and not even believe what they had written was true or acted recklessly. But if at a later date they could show those statements were true as fact or rely on information they were not aware of at the time of publication or events that had happened after publication they would still succeed with their defence of truth.
The defence of honest opinion is contained in section 3 of the Defamation Act 2013.
To succeed the defendant must show that the defamatory statement is a statement of opinion and not a statement of fact.
That the statement indicated, whether in general or specific terms, the basis of the opinion. The opinion must be based on true facts which are either contained in the publication or are sufficiently referred to. It is for your opponent to prove that the underlying facts are true. If they are unable to do so, then the defence will fail.
The defendant does not to have to prove the truth of every fact provided the comment was fair in relation to those facts which are proved that an honest person could have held the opinion on the basis of; any fact which existed at the time the statement complained of was published; anything asserted to be a fact in a privileged statement published before the statement complained of.
If you can prove that the opinion was not honestly held then the defence will not succeed.The reasoning being that an opinion will not be protected if the defendant did not really hold that opinion.
The views expressed can be exaggerated, obstinate or prejudiced, provided they are honestly held.
Defamation Act 2013: Publication on matter of public interest
- (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  2 A.C. 127,  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  EWHC 1853 (QB),  E.M.L.R. 4,  7 WLUK 690. However the list was not a mandatory checklist.
In Serafin v Malkiewicz  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”
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.
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 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.
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.
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  EWCA Civ 35, in which a science writer was sued for accusing the claimant of promoting bogus treatments.
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