Tort -> Defamation Defences

Defences

• Justification (truth): The truth can never be defamatory but the burden will be on the defendant to prove the statement is true. Therefore the claimant has no right to complain about true statement which lowers his reputation. If there’s only a small part that can’t be proven but you have proved the main part then the defence of justification will still work (Alexander v North Eastern Railway). Intention on the defendant’s part is irrelevant (malice, public interest). Defence of justification failed in Wakley v Cooke as ‘liabelist journalist’ meant a habitual liabelist.
• Fair Comment: here the defendant is exercising a right to criticise the claimant, and does not have to show his comments are true (freedom of expression). The courts have to strike a balance between upholding a democratic right and protection of reputation. The defence can be used in one of the following ways:

a. The statement must be an opinion not fact: The defendant must be able to show that the words in question consist of a comment on a given set of facts, but not necessarily true but merely fair (London Artists v Littler).

b. Statement must be based upon true facts: or on statement made on a privileged occasion. Facts must be stated or implied (Kemsley v Foot).

c. In the public interest: if the defendants comments in the “public interest” or a matter submitted for public criticism (a book). In other words matters which affect people generally in which they are legitimately interested or concerned i.e. conduct of politicians (Seymour v Butterworth), closure of West End play (London Artists v Littler).

d. Fair and Honest: ‘Would any honest person, however prejudiced or obstinate their views, have held this view?’ (Turner v MGM). The judge will decide whether a hypothetical person could honestly express the commentators views on the assumption that he knew the facts accurately.

e. If the defendants comment was motivated by malice there can be no defence of Fair Comment. Therefore if it can be proved that malice was intent when making the comment and the defendant doesn’t really believe his comment … then he has no defence of fair comment.

Privilege

The third main defence. Here we consider an occasion when the public interest in freedom of expression overrides any concerns as to the effect of this freedom on the claimant’s reputation. This is subject to being able to show the court that the occasion falls within an established head of privilege:

Absolute privilege

Applied on occasions where the need to protect freedom of speech is so important as to create an absolute defence to any action for defamation irrespective of the authors motives. Usually applied to statements made in Parliament, in court and by certain officers of state. Possible 5 Occasions where it can be applied:

1. Statements in Parliament: Article 9 of the Bill of Rights 1688 states “the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”. Thus allowing parliament autonomy and MPs freedom to criticise individuals as they feel appropriate. S13 of the Defamation Act 1996 allows an MP to waive privilege for the purpose of defamation hearings.
2. Reports, papers, votes and proceedings ordered to be published by either houses. By virtue of s 1 Parliamentary Papers Act 1840 statements in such documents are absolutely privileged… but not extracts or abstracts of these docs (but is covered by qualified privilege…see below).
3. Judicial Proceedings. To ensure a fair trial absolute privilege is therefore given to all oral and written statements made in the course of judicial proceedings. Privilege extends to judge, jury, advocates as well as parties and witnesses.
4. Reports of UK court proceedings: s14 of Defamation Act 1996 provides all fair and accurate reports of public proceedings in any court to have absolute privilege.
5. Communication between certain officers of state: Officers of state will perform their duties better if they are not acting under fear of litigation. CoA in Chatterton v Secretary of State for India held any judicial inquiry into such things will deprive officers of state of their freedom of action. But doesn't extend to civil servants or any officer below the rank of minister (Stacho v Fink).

Qualified Privilege

Qualified privilege operates only to protect statements which are made without malice. The judge must decide whether the situation is covered by qualified privilege. If so the jury must then decide whether the defendant acted in good faith or whether there was malice.

The following are protected by QP:

1. Statements made in pursuance of a legal, moral or social duty, but only if the party making the statement had an interest in communicating it and the recipient had an interest in receiving it.
2. Statements made in protection of an interest, eg public interests or the defendant's own interests in property, business or reputation
3. Fair and accurate reports of parliamentary proceedings.
4. Fair and accurate reports of public judicial proceedings in the UK, eg when the report is not published contemporaneously with the proceedings.
5. Statements privileged by s15 of the Defamation Act 1996, which applies to statements made in newspapers and radio and television broadcasts.

KEY CASE: Reynolds v Times Newspaper: HL held 10 matters were critical:

• Seriousness of allegations.
• Was it of public concern?
• The source of the information
• Whether steps were taken to verify it.
• The status of the information.
• The urgency of the issue.
• Whether comment was sought from the claimant.
• Were the claimants comments included in the article?
• Tone of the article.
• Circumstances & timing of publication.