If you have received a letter of claim alleging that you are the author, editor, or publisher of a defamatory publication, there are several defences to defamation which may be applicable. This article is going to discuss some of those defences.
Truth:
The first and perhaps most obvious defence is that the statement is true. If it is established that the statement is substantially true, it will apply no matter how damaging it is to the claimants’ reputation. Minor inaccuracies will not prevent this defence applying provided that the statement is substantially true. In other words, every word does not literally need to be true, if it is broadly accurate.
Honest opinion:
Section 3 of the Defamation Act 2013 sets out three conditions for this defence. Firstly, the statement complained of must be a statement of opinion. The next condition is that the ‘statement complained of indicated, whether in general or specific terms, the basis of the opinion.’ The final condition is that an ‘honest person’ could of held that opinion based on, any fact which existed at the time the statement was published or ‘anything asserted to be fact in a privileged statement published before the statement complained of.’ A privileged statement is either a publication on the matter of public interest, peer reviewed statement in a scientific or academic journal, reports of court proceedings protected by absolute privilege, or other reports protected by qualified privilege.
The defence is defeated if the claimant can show that the defendant did not hold the opinion. However, this does not apply if the defendant was only the publisher and not the author. Unless the claimant can show that the defendant ‘knew or ought to have known that the author did not hold the opinion.’
The use of certain words can suggest the statement is an opinion. For example, if the statement says, ‘I think’, it is likely an opinion. However, in many cases it can be difficult, as proving the mental state of the defendant based on the information they had at the time, presents challenges.
The final condition is asking whether an honest person could have held the same opinion based on existing facts or previously published privileged material, meaning the opinion needs to be a reasonable one to hold. If a judge concludes that no one could reasonably hold that opinion then the defence will fail, even if the defendant did honestly hold the opinion.
Absolute privilege:
This defence applies when freedom of expression is more important than protecting reputation. When absolute privilege applies it is impossible to sue even if the statement is defamatory. Absolute privilege applies in the following circumstances.
- Any statement made in Parliament by a Parliament member or published in a report by either House. It also applies if the report is republished by another person.
- A statement made by an officer of state to another officer of state in the course of their duty. Ministers and Secretaries of State are officers of state.
- Statements made by one spouse to another.
- Statements made during judicial proceedings by the judge, jury, lawyers, witnesses, or the parties.
- Statements made by officials and other EU servants in the course of their duties.
- Fair and accurate reports of public court proceedings. In some cases, reports will be delayed for a period to avoid influencing a jury in a pending case.
Absolute privilege covers the person and would not cover subsequent reports of the statement. The only exception to this is when it is fair and accurate reports of public court proceedings as it is in the public interest. Media outlets would not be able to accurately report proceedings if they could be held liable for repeating defamatory statements.
Qualified privilege:
This defence also applies in certain circumstances. It is when freedom of expression is important but not unrestricted as it is for absolute privilege. Qualified privilege is either qualified under statute or in common law. However, the defence will not apply if the statement is made with malice or if the person making the statement did not believe it to be true.
Qualified privilege under statute applies when a statement published is of public concern and it is in the public interest to publish. This includes fair and accurate reports of courts, proceeding of legislatures, government inquiries and international organisations held in public, anywhere in the world. Fair and accurate extracts or copies of reports published or authorised by any government, legislature, international organisation, or conference, worldwide. Another statutory qualified privilege is for academic and scientific writing to provide protection for open discussions on academic and scientific issues.
Cases have established several areas in which qualified privilege under common law applies. Bryanston Finance v De Vries (1975) demonstrated that qualified privilege applied when defamatory statements were made concerned with protecting business interests. Watt v Longsdon (1930) showed it could apply with communications between officers of a company. Croucher v Inglis (1889) asserted that information given to the police about a suspected crime is a right and duty.
Apology:
An apology is not a complete defence, but it can be used to reduce the damages payable. It will more likely reduce damages if it is offered quickly, especially if it was before the proceedings began. A full and prompt apology published in an equal manner to that of the defamatory statement can limit the damaged caused to the claimants’ reputation.
Offer of amends:
This procedure requires the defendant to make a written offer to publish an apology/correction and pay damages. The claimant can choose to accept or reject this offer. The defendant must make this offer before presenting any other defence. It cannot be done last minute because the original defence is failing. An offer of amends can save the costs of going to court.
If you need any advice regarding a defamation claim, then please contact the Lawdit team today.
